State v. Lemons
| Decision Date | 02 November 1921 |
| Docket Number | 349. |
| Parties | STATE v. LEMONS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rockingham County; Long, Judge.
Tom Lemons was convicted of violating the prohibition law, and he appeals. No error.
This was an indictment for violation of the prohibition law (C. S §§ 3367-3411), setting out 4 counts, the first of which alleged an unlawful sale of spirituous liquors and the second for having spirituous liquors in possession for the purpose of sale. The defendant introduced no evidence. Verdict of guilty. When the foreman began giving the reasons for the verdict the court told him that the jury must find for their verdict "guilty or not guilty," and thereupon the jury returned a verdict of guilty with a recommendation for mercy. Judgment and appeal by defendant.
J. R Joyce, of Reidsville, and U. Leland Stanford, of Stoneville for appellant.
J. S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
The witness Price testified that the defendant let him have three half pints of whisky which was loaned to him?? that he did not buy it, but that he agreed to return it, and told the defendant that he did not know when he would get the whisky to return, and afterwards offered to pay him.
The defendant excepted to the refusal to let the witness Price answer the question whether he afterwards paid the defendant. The question was immaterial and irrelevant, for a sale on credit, or a loan of liquor to be returned, comes within the statute. In State v. Mitchell, 156 N.C. 659, 72 S.E. 632, 37 L. R. A. (N. S.) 302, Ann. Cas. 1913A, 469, the court held:
"When one lends spirituous liquor with the understanding that it shall be returned in kind, the title to the liquor passes absolutely on the consideration of its being replaced, and the transaction is a barter or exchange and comes within the meaning of the word 'sale,' and therefore is a violation of the state prohibition law."
Brown, J. (156 N.C. at page 662, 72 S.E. 634, 37 L. R. A. [ N. S.] 302, Ann. Cas. 1913A, 469), very appropriately said:
The defendant introduced no evidence, but contented himself with demurring to the evidence of the state, which was properly submitted to the jury. The exceptions to the charge do not require discussion.
The defendant moved here in arrest of judgment on the grounds:
(1) That the bill of indictment does not allege a sale to any particular person or to a person or persons to the jurors unknown. Laws 1913, c. 44, § 6, now C. S. § 3383, prescribes that in an indictment for this offense "it shall not be necessary to allege a sale to a particular person, and the violation of law may be proved by circumstantial evidence as well as by direct evidence." This section was sustained in State v. Brown, 170 N.C. 714, 86 S.E. 1042.
(2) That the offense is not alleged to have been committed in Rockingham county, and also argued that the date of the transaction was not set out in the indictment. C. S. § 4625, which was previously Rev. § 3255, and Code, § 1189, provides that no judgment can be stayed or reversed (among other things) for failure to state the time or stating an impossible time of the commission of the offense when time, as in this case, is not of the essence of the offense. State v. Williams, 117 N.C. 755, 23 S.E. 250, nor for want of a proper and perfect venue when the court shall appear to have had jurisdic tion of the offense.
The heading of the indictment was probably, "North Carolina Rockingham County," and the indictment merely recites that the offense occurred on May --, 1921, "at and in the county aforesaid." But whether there was such heading or not, the indictment was found by the grand jury of Rockingham which had jurisdiction of the offense, and if the offense had not been committed in that county the defendant waived the objection by not pleading in abatement. State v. Lewis, 142 N.C. 636,...
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