State v. Murphrey

• Decision Date: 26 September 1923
• Docket Number: 147.
• Citation: 118 S.E. 894,186 N.C. 113
• Parties: STATE v. MURPHREY.
• Court: North Carolina Supreme Court

118 S.E. 894

186 N.C. 113

STATE v. MURPHREY.

No. 147.

Supreme Court of North Carolina

September 26, 1923

Appeal from Superior Court, Greene County; Grady, Judge.

Herbert Murphrey was convicted of unlawfully selling spirituous liquors, and excepts and appeals. No error.

Testimony that witness inquired whether accused had any whisky, to which accused replied that he could let him have a quart whereupon witness gave accused $2, and the latter delivered the liquor, held to show, if believed, accused received the money as a consideration for the transfer of his title to the whisky, so as to constitute the transaction a sale.

The defendant was indicted for the unlawful sale of spirituous liquor. Dr. W. E.

Dawson who was the only witness, testified for the state as follows:

"I was on my way to see a patient suffering with influenza, when I met Herbert, and I asked him if he had any whisky, and he said that he could let me have a quart. I said, 'Shoot it over,' and gave him two $1 bills, and he gave me one quart of whisky. He did not make any charges. I simply gave him $2, and asked him if that was all right, and drove on. I have purchased whisky from others, and used it in treating my patients suffering with influenza."

His honor instructed the jury as follows:

"I charge you, gentlemen, if you believe the evidence in this case, you will return a verdict of guilty. You may retire and make up your verdict, or you may sit where you are."

The defendant excepted. The jury returned a verdict of guilty, upon which judgment was pronounced, and the defendant appealed.

Richard T. Martin and Walter G. Sheppard, both of Farmville, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS J.

The defendant entered a plea of not guilty, and thereby put in issue, not only his guilt, but the credibility of the state's evidence; for evidence tending to show guilt is disputed, even when uncontradicted, there being a presumption of innocence, which can be overcome only by the verdict of a jury. State v. Hill, 141 N.C. 770, 53 S.E. 311.

The state introduced only one witness, and the defendant offered no evidence. To establish guilt under these circumstances it was incumbent on the state to show that Dawson's testimony, if accepted by the jury, was sufficient to show a breach of the statute. The substance of his testimony was this: He inquired whether the defendant had any whisky; the defendant said he could let him have a quart; he gave the defendant $2, and the defendant delivered the liquor. True, the witness said the defendant made no charges; but the testimony, if believed, clearly shows that the defendant received the money as a consideration for the transfer of his title to the whisky. This transaction constituted a sale ( State v. Colonial Club, 154 N.C. 177, 69 S.E. 771, 31 L. R. A. [ N. S.] 387, Ann. Cas. 1912A, 1079), and the credibility of the testimony was submitted to and determined by the jury.

His honor's instruction is sustained by several decisions. In State v. Vines, 93 N.C. 493, 53 Am. Rep. 466, there was only one witness, and the court charged the jury, if they believed the testimony, the prisoner was guilty of manslaughter. Discussing the prisoner's exception, Merrimon, J., said:

"It was insisted on the argument here that the judge invaded the province of the jury in instructing them that, 'if they believed the testimony of the witness, the prisoner was guilty of manslaughter,' We do not think so; this contention has not the slightest foundation. The judge did not intimate in the least degree, in terms or by implication, that he did or did not believe the evidence to

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