State v. Jarrett

• Decision Date: 22 April 1925
• Docket Number: 345.
• Parties: STATE v. JARRETT.
• Court: North Carolina Supreme Court

127 S.E. 590

189 N.C. 516

STATE v. JARRETT.

No. 345.

Supreme Court of North Carolina

April 22, 1925

Appeal from Superior Court, Forsyth County; Finley, Judge.

Bob Jarrett was convicted of unlawfully delivering intoxicating liquor, and keeping intoxicating liquor in possession for sale, and he appeals. No error.

Sentence for 12 months on county roads on first count, and same on second, to commence at termination of first, authorized.

The defendant was tried on appeal from the municipal court of Winston-Salem, at the October term, 1924, of Forsyth county superior court. The warrant in the municipal court on which he was tried in the superior court charged, in part, in the words of section 2 of the Turlington Act (chapter 1, Public Laws 1923), as follows:

"Did unlawfully and willfully transport, import, export deliver, furnish, purchase and possess intoxicating liquor in violation of law, and did have and keep in his possession for the purpose of sale intoxicating liquor."

The last clause charges an offense against section 10 of the Turlington Act.

The evidence of the state was as follows:

"Rush Howell testified that he bought a half pint whisky from the defendant and paid $1 for same, and the whisky was delivered to him by the defendant."

"John Alspaugh testified that he bought half pint of whisky from the defendant and paid him $1 for same, and defendant delivered the whisky to him."

The court below charged the jury, in part, as follows:

"The state relies upon two causes in the warrant--one for delivering liquor to the prosecuting witness, and the other is for having liquor in his possession for the purpose of sale. He is not charged with the sale in the warrant, but having on hand for the purpose of sale. He is charged with that."

The jury returned a verdict of guilty. The following judgment was rendered by the court below:

"The judgment of the court is that, on the first count in the bill of indictment, the defendant be confined to the common jail for a term of 12 months and assigned to work on the public roads of Forsyth county, not to wear felon stripes, and on the second count in the bill of indictment, the judgment of the court is that the defendant be confined in the common jail for a term of 12 months and assigned to work on the public roads of Forsyth county, not to wear felon stripes, this sentence to begin at the expiration of the sentence on the first count contained in the bill of indictment. The judgment of the court is that, on the third count in the bill of indictment, the defendant be confined in the common jail for a term of 12 months and assigned to work on the public roads of Forsyth county, and not to wear felon stripes. Capias as to the sentence on the third count in the bill of indictment to issue upon motion of the solicitor."

Defendant made several exceptions, assigned error, and appealed to the Supreme Court. These will be considered in the opinion.

J. S. Fitts, M. L. Mott, Jr., and Holton & Holton, all of Winston-Salem, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

CLARKSON J.

It may not be amiss to give the entire section 2, of the Turlington or Conformity Act (Public Laws 1923, c. 1):

"No person shall manufacture, sell, barter, transport, import, export, deliver, furnish, purchase, or possess any intoxicating liquor except as authorized in this act; and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented. Liquor for nonbeverage purposes and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, furnished, and possessed, but only as provided by title II of 'the Volstead Act,' act of Congress enacted October twenty-eighth, one thousand nine hundred and nineteen, an act supplemental to the National Prohibition Act, 'H. R. 7294,' an act of Congress approved November twenty-third, one thousand nine hundred and twenty-one."

The warrant on which defendant was tried does not contain all that the Turlington Act makes unlawful in section 2; it omitted, to wit, "manufacture, sell, barter." The warrant does contain a charge under section 10, "and did have and keep in his possession for the purpose of sale intoxicating liquor." The warrant charges "(1) unlawfully and willfully deliver intoxicating liquor, (2) did have and keep in his possession for the purpose of sale intoxicating liquor."

The defendant contends that the indictment contained but one count, when the judge charged the jury that there were two counts, and the verdict should have been set aside; there was error in the court below not setting aside the verdict, and also error in not allowing defendant's motion in arrest of judgment based upon the same facts. We cannot so hold.

C. S. § 4622 (Laws 1917, c. 168), is as follows:

"When there are several charges against any person for the same act or transaction or for two or more acts or transactions connected together, or for two or more transactions of the same class of crimes or offenses, which may be properly joined instead of several indictments, the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court will order them to be consolidated; provided, that in such consolidating cases the defendant shall be taxed the solicitor's full fee for the first count, and half fees for each subsequent count upon which conviction is had; provided, this section shall not be construed to reduce the punishment or penalty for such offense or offenses."

If separate indictments had been found against defendant (1) for delivering intoxicating liquor; (2) for having and keeping in his possession for the purpose of sale intoxicating liquor, it was in the sound discretion of the court below to consolidate. This matter is ably and clearly discussed by Varser, J., in State v. Malpas, 189 N.C. 349, 127 S.E. 248--see cases cited. The statute in plain language gives the authority. The defendant should have requested the court below to quash or to make the solicitor elect on which offense defendant should be tried or to nol. pros., it would have been in the discretion of the court below to grant the motion. No such request was made. In State v. Hedgecock, 185 N.C. 719, 117 S.E. 50, it is said:

"Indeed, in S. v. Little, 171 N.C. 806, Hoke, J., said: 'As a matter of form, in respect to the feature of the charge, that the unlawful delivery of the quantity (of liquor) specified was to "a person or persons to the jurors unknown," the bill of indictment has been held sufficient. S. v. Dowdy, 145 N.C. 432; S. v. Tisdale, Id., 422 (which were prior to the act of 1913, now C. S. 3383), and the principal question presented is whether, on the facts contained in the special verdict, the defendant is guilty of the offense, under the statute, charged against him in the bill'--which was a violation of the law against transporting intoxicating liquors."

In State v. Switzer, 187 N.C. 94, 121 S.E. 45, it is said:

"Where there are several offenses, but of the same grade and punishable alike, the power of the court to quash or compel the solicitor to elect is a matter of sound discretion. S. v. Burnett, 142 N.C. 580; S. v. Lewis, 185 N.C. 643."

In State v. Burnett, supra, 142 N.C. 580, 55 S.E. 73, this court said:

"When an indictment charges several distinct offenses in different counts, whether felonies or misdemeanors, the bill is not defective, though the court in its discretion may compel the solicitor to elect, if the offenses are actually distinct and separate, lest the prisoner be confused in his defense or embarrassed in his challenges; but there is no ground to require the solicitor to elect when the indictment charges the same act 'under different modifications, so as to correspond with the precise proofs that might be adduced.' State v. Haney, 19 N.C. 394; State v. Barber, 113 N.C. 714; Gold Brick Case, 129 N.C. 656 and cases there cited. Besides, duplicity is ground only for a motion to quash, made in apt time, and is cured by verdict. State v. Wilson, 121 N.C. 655; State v. Hart, 116 N.C. 978; State v. Cooper, supra ; State v. Haney, su...