State v. Johnson

• Decision Date: 07 June 1921
• Docket Number: 498.
• Citation: 107 S.E. 433,181 N.C. 638
• Parties: STATE v. JOHNSON.
• Court: North Carolina Supreme Court

107 S.E. 433

181 N.C. 638

STATE v. JOHNSON.

No. 498.

Supreme Court of North Carolina

June 7, 1921

Appeal from Superior Court, Henderson County; Adams, Judge.

Criminal prosecution by the State against H. B. Johnson, in which it was sought to condemn and forfeit an automobile used in transporting spirituous liquors contrary to law. From a judgment denying the motion of J. H. Creasman, intervener for the return of the automobile to him, he appeals. Reversed, and judgment directed for the intervener.

Clark C.J., dissenting.

The defendant, H. B. Johnson, was tried and convicted under an indictment charging him with having in his possession and transporting spirituous liquors in violation of law; and the automobile, used by the defendant for transporting same, was sought to be condemned and forfeited as provided by statute. After the defendant had been tried and convicted, J. H Creasman intervened and claimed title to the automobile. Upon the hearing of this intervention, the court found the facts and entered the following judgment:

"This is a motion made by J. H. Creasman for the return to him of an automobile seized by the sheriff of Henderson county, for the violation of the liquor laws by the defendant, while the said car was in H. B. Johnson's actual possession.

At the request of the defendant the court finds the facts in this case, which are as follows:

(1) The defendant, H. B. Johnson, at the present term of this court, was duly convicted by a jury for the unlawful transportation of spirituous liquor from Henderson county to the city of Asheville.

(2) That J. H. Creasman is engaged in the automobile public service business, with his principal office at the Langren Hotel, in the city of Asheville, and was the owner of the Studebaker car seized by the sheriff of Henderson county, while in the possession of the defendant, H. B. Johnson.

(3) That on the 24th day of February, 1921, the defendant, H. B. Johnson, was in the regular employ of said J. H. Creasman, acting in the capacity of chauffeur for said Creasman, and that said Creasman had in his employ approximately 10 other chauffeurs, at the time the car was seized.

(4) That on the 24th day of February, 1921, T. B. Whitaker and Charles McCurry employed the defendant, H. B. Johnson, as Creasman's employee, to drive said car from Asheville to a certain place in Henderson county, and agreed to pay for the hire of said car at the rate of $4 an hour for the trip to Henderson county and the return to Asheville.

(5) That said Creasman had no knowledge that the car was hired for the purpose of transporting liquor, and he had directed and instructed all his chauffeurs, including the defendant, Johnson, not to carry persons in any of the automobiles operated by him who had whisky in their possession, or who were in any way using whisky.

(6) That when the said automobile was seized by the sheriff, the defendant, Johnson, was operating said car for the benefit of said Creasman in the course of his employment and in furtherance of said Creasman's business, at the agreed price of $4 an hour.

(7) That the sheriff of Henderson county took said car into his possession, as provided by sections 3403, 3404, and 3405 of the Consolidated Statutes, for a breach of the prohibition laws by the defendant, H. B. Johnson, and that four gallons of liquor were in said car at the time the car and liquor were seized by the sheriff, and defendant was transporting said liquor in violation of law.

(8) That said sheriff has kept said car in his possession from the date of its seizure until the present term of this court, and until the defendant was convicted of the unlawful transportation of liquor, and that said sheriff now has said car in his possession.

Upon the foregoing facts the court is of the opinion that the said J. H. Creasman has forfeited and lost all right, title, and interest in and to said car; and it is ordered and adjudged that the sheriff of said county proceed to advertise and sell said car, under the laws governing the sale of personal property under execution, and that the proceeds be applied as provided by law.

This the 11th day of March, 1921.

W. J. Adams, Judge Presiding."

From this judgment, the intervener appealed.

Philip C. Cocke, of Asheville, for appellant.

Attorney General Manning and Assistant Attorney General Nash, for the State.

STACY, J.

Section 3403 of the Consolidated Statutes, under which it is contended the intervener's automobile should be forfeited, in part, provides:

"If any person * * * shall have or keep in possession any spirituous, vinous or malt liquors in violation of law, the sheriff or other officer * * * who shall seize such liquors * * * is hereby authorized and required to seize and take into his custody any * * * automobile * * * used in conveying * * * such * * * liquors, and safely keep the same until the guilt or innocence of the defendant has been determined upon his trial for the violation of any such law making it unlawful to so keep in possession any spirituous, vinous or malt liquors, and upon conviction of a violation of the law, the defendant shall forfeit and lose all right, title and interest in and to the property so seized."

It will be observed that, under the provisions of this statute, the automobile or property itself is not condemned and forfeited, but only the right, title, and interest of the defendant in and to the property so seized. The defendant, H. B. Johnson, had no right, title or interest in the automobile and the intervener, J. H. Creasman, was not a defendant or party to the proceeding. Hence we think the owner's petition for a release of the property should have been granted.

The federal law upon this subject, with respect to the question of forfeitures, is different from our state law, in that under the national legislation, the property itself, the res, and not merely the defendant's right, title and interest therein, is condemned and forfeited when the same is used by any one in the forbidden way. Bush v. United States (C. C.) 24 F. 917; United States v. Mincy, 254 F. 287, 165 C. C. A. 575, 5 A. L. R. 211. Hence the federal decisions, based upon statutes which authorize a seizure and condemnation of the property without regard to its ownership or management, afford no guide or rule of construction in interpreting our own laws. Indeed, we are well assured that no court of competent jurisdiction would be disposed to extend a penal statute, by implication or otherwise, to include a forfeiture beyond the clear import of its provisions. The case of Daniels v. Homer in our own reports, 139 N.C. 219, 51 S.E. 992, fully recognizes this principle and is in keeping with the authorities where the statute provides that the property, so used in offending, shall be seized and sold. This distinguishes it from the case at bar. "Forfeitures are not favored in the law. Courts always incline against them." Farmers' Bank v. Dearing, 91 U.S. 29, 23 L.Ed. 196. In Sutherland's Statutory Construction, 547, the rule is stated as follows:

"If a statute creates a liability where otherwise none would exist, or increases a common-law liability, it will be strictly construed"--citing numerous authorities in support of the text.

To the same effect are our own decisions: McGloughan v. Mitchell, 126 N.C. 683, 36 S.E. 164; Coble v. Shoffner, 75 N.C. 43; Smithwick v. Williams, 30 N.C. 268.

In answer to the contention of the state that the intervener should be held liable for the acts of his agent under the doctrine of "Qui facit per alium, facit per se," or respondeat superior, it is sufficient to say, at least for the purposes of this appeal that he has not been indicted or made a party defendant; and we have found no provision in the statute by which a master may be punished for the acts of his servant without giving him an opportunity to be heard. The law provides that "the defendant shall forfeit and lose all right, title and interest in and to the property so seized," and this is as far as the Legislature has gone. We can go no further. As said by Gray, C.J., in Ex parte Robinson, 131 Mass. 376, 41 Am. Rep. 239:

"It is hardly necessary to add that our duty is limited to declaring the law as it is, and that whether any change in that law would be wise or expedient is a question for the legislative and not for the judicial department of the government."

See, also, In re Applicants for License, 143 N.C. 1, 55 S.E. 635, 10 L. R. A. (N. S.) 288, 10 Ann. Cas. 187; State v. Lewis, 142 N.C. 626, 55 S.E. 600, 7 L. R. A. (N. S.) 669, 9 Ann. Cas. 604; and concurring opinion in Wilson v. Jordan, 124 N.C. 683, 33 S.E. 139.

The particular statute now under consideration was before the court in Skinner v. Thomas, 171 N.C. 98, 87 S.E. 976, L. R. A. 1916E, 338, and we content ourselves by referring to that case as a controlling authority. Let judgment be entered, directing the sheriff to return the property in question to the intervener.

Error.

CLARK C.J. (dissenting).

This is an appeal from an order condemning the automobile which was used by the defendant, Johnson, in the illicit transportation of spirituous liquors. The appellant and intervener, J. H. Creasman, is engaged in the automobile service business in the city of Asheville, and is owner of the car seized by the sheriff while in possession of said Johnson, who was one of about 10 drivers who were regular employees of Creasman at the time the car was seized. Johnson, as Creasman's employee, drove the car, which he then had in charge, from Asheville to a point in Henderson county for T. B. Whitaker and Chas. McCurry, who hired said car at $4 an hour for the round trip.

C. S. 3403, provides:

"If any person * * * shall have or keep in...