State v. McLamb
| Decision Date | 17 March 1952 |
| Docket Number | No. 218,218 |
| Citation | 235 N.C. 251,69 S.E.2d 537 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. McLAMB. |
Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Charles G. Powell, Jr., Member of Staff, Raleigh, for the State.
Canaday & Canaday and J. Roscoe Barefoot, all of Benson, for defendant appellant.
Defendant assigns as error several rulings of the trial court upon which he formulates questions of law involved. We treat them seriatim.
1. Exceptions were taken to the admission of evidence secured by the officers under the search warrant. It is contended that the search warrant is defective for that the justice of the peace, who issued it, failed to comply with the requisites of G.S. § 15-27, and amendments thereto, in that the procuring officer was not required to furnish sufficient facts to show probable cause for the issuance of such warrant. Be that as it may, it appears here that the provisions of G.S. § 18-13 are applicable rather than G.S. § 15-27. G.S. § 18-13 provides that 'upon * * * information furnished under oath by an officer charged with the execution of the law, before a justice of the peace, * * * that he has reason to believe that any person has in his possession, at a place or places specified, liquor for the purpose of sale, a warrant shall be issued commanding the officer to whom it is directed to search the place or places described in such * * * information; and if such liquor be found in any such place or places, to seize and take into his custody all such liquor, and to seize and take into his custody all glasses, bottles, jugs, pumps, bars, or other equipment used in the business of selling intoxicating liquor which may be found at such place or places, and to keep the same subject to the order of the court. * * *'
Testing the affidavit of the officer here in question by the provisions of this statute, G.S. § 18-13, it appears that the matters contained in the affidavit are sufficient to justify the justice of the peace to issue the search warrant. hence, in the admission of the evidence to which such exceptions relate, error is not made to appear.
2. Defendant next stresses for error the denial of his motions, aptly made, for judgment as in case of nonsuit. G.S. § 1-183.
In passing upon this question, it is appropriate to note that in Article 1 of Chapter 18 of the General Statutes of North Carolina, pertaining to the regulation of intoxicating liquors, G.S. § 18-4, it is provided that '* * * It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this article * *.' See State v. Jaynes, 198 N.C. 728, 153 S.E. 410; State v. Webb, 233 N.C. 382, 64 S.E.2d 268.
Defendant is charged with violating this statute as it pertains to property designed for the manufacture of liquor, etc. His plea of not guilty puts in issue every element of the offense charged. State v. Meyers, 190 N.C. 239, 129 S.E. 600; State v. Harvey, 228 N.C. 62, 44 S.E.2d 472; State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349; State v. Webb, supra.
Possession, within the meaning of the above statute, may be either actual or constructive. State v. Lee, 164 N.C. 533, 80 S.E. 405; State v. Meyers, supra; State v. Penry, 220 N.C. 248, 17 S.E.2d 4; State v. Webb, supra.
In the Meyers case, supra [190 N.C. 239, 129 S.E. 602], it is stated: 'If the liquor was within the power of the defendant, in such a sense that he could and did command its use, the possession was as complete within the meaning of the statute as if his possession had been actual.' And in the Webb case, supra, it is said that this principle applies alike to the possession of property designed for the manufacture of intoxicating liquor within the meaning of the statute. G.S. § 18-4.
Moreover, in the Jaynes case, supra, this statute, then 3 C.S. § 3411(d), and under consideration, used the word 'designated', and this Court held that this word was evidently intended for 'designed', and might be so regarded, and, hence, the charge against the defendant was 'having in his possession certain utensils designed and intended for use in the unlawful manufacture of intoxicating liquor'--and that 'the fact that they had not been completely assembled or arranged for the purpose would seem to make no difference under the language of the statute.' Also it is noted that now the word 'designated' as it then appeared in the statute has been deleted, and the word 'designed' substituted in lieu of it.
The word 'designed' is defined in Webster's New International Dictionary, as 'done by design or purposely,' that is, 'opposed to accidental or inadvertent.' Hence as used in the statute, G.S. § 18-4, the phrase 'property designed for the manufacture of liquor' means property 'fashioned according to a plan' (Webster) for that purpose.
In the light of the provisions of the statute, as interpreted by these decisions of the Court, in passing upon the question now being considered, it must be borne in mind that the verdict of the jury is that defendant is not guilty as to the ownership and operation of the three stills described in the warrant, but that he is 'guilty as to the possession of the materials and things found at the house for use in manufacturing liquors.'
Thus in the light of the verdict the question now is whether the evidence, taken most favorably to the State, as is done in considering demurrer to the evidence, G.S. § 1-183, is sufficient to take the case to the jury in respect of the charge to which the verdict of guilty relates. When so considered, the evidence appears to be sufficient, and it is held that it is sufficient to take the case to the jury--particularly the testimony relating to the barrel, referred to as the container barrel with holes in it. The testimony is that the officers found it 'at the barn' on defendant's premises, and that a barrel of this type, in the manufacture of whiskey, is 'known as a worm barrel or condenser barrel.'
3. The next question is based on exceptions to the rulings of the trial court in respect to the remarks of the solicitor, hereinabove quoted, made in the course of his argument to the jury. The challenge so made is well founded.
The record and case on appeal...
To continue reading
Request your trial
-
State v. Courtney
...Indictments and Informations § 100. A plea of not guilty puts in issue every essential element of the crime charged. State v. McLamb, 235 N.C. 251, 256, 69 S.E.2d 537, and cases cited; 14 Am. Jur., Criminal Law, Sec. 268; 22 C.J.S. Criminal Law § Although not an essential averment, if in fa......
-
State v. Blankenship
...(1975); State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975); State v. Roberts, 243 N.C. 619, 91 S.E.2d 589 (1956); State v. McLamb, 235 N.C. 251, 69 S.E.2d 537 (1952). On the other hand, it may be proper for a juror to consider adversely to defendant, defendant's failure to proffer evidenc......
-
State v. Rouse
...however, was clearly language which would have been interpreted as reflecting defendant's silence. See also State v. McLamb, 235 N.C. 251, 257, 69 S.E.2d 537, 541 (1952) (prosecutor's comment that defendant was "hiding behind his wife's coat tail" were improper as they commented on defendan......
-
State v. Davis
...41 L.Ed.2d 20 (1974)), cert. denied, 516 U.S. 832, 116 S.Ct. 107, 133 L.Ed.2d 60 (1995). Defendant's reliance on State v. McLamb, 235 N.C. 251, 257, 69 S.E.2d 537, 541 (1952), as support for his contention is misplaced. In McLamb, while the defendant did not testify, his wife and several me......