State v. Muse
| Decision Date | 25 May 1949 |
| Docket Number | 651 |
| Citation | 53 S.E.2d 529,230 N.C. 495 |
| Parties | STATE v. MUSE. |
| Court | North Carolina Supreme Court |
Criminal prosecution upon a bill of indictment charging that on December 31, 1948, defendant 'did unlawfully and willfully have in his possession for the purpose of sale and did unlawfully and willfully * * * sell 2 one-half pints of tax-paid intoxicating whiskey against the form of the statute', etc.
Upon the trial in Superior Court the State offered evidence tending to support the charge,--the witness L. G. McGill testifying to an actual sale to him by defendant of two half pints of tax-paid intoxicating whiskey in the night of December 31, 1948. The State also offered evidence tending to corroborate the testimony of McGill. On the other hand, defendant, testifying as a witness for himself, denied that he had sold any whiskey to L. G. McGill on December 31 1948, or at any other time, and offered testimony of others tending to corroborate his testimony and to contradict the evidence offered by the State.
Further recital of the evidence is unnecessary, since no question as to the sufficiency of the evidence to take the case to the jury is raised on this appeal.
Verdict Guilty as charged in the bill of indictment.
Judgment Imprisonment in the common jail of Robeson County and assigned to work under the supervision of the State Highway and Public Works Commission for a term of 12 months.
Defendant appeals therefrom to Supreme Court, and assigns error.
Harry M. McMullan, Attorney General, Ralph M. Moody and John R. Jordan, Jr., Assistant Attorneys General, for the State.
McLean & Stacy, Lumberton, Nance & Barrington, Fayetteville, T. A. McNeill, Lumberton, for defendant-appellant.
While in the record on this appeal defendant sets out thirty nine assignments of error covering forty five exceptions, he adverts in his brief to only seven of them. Those exceptions in the record not brought forward in his brief or in support of which no reason or argument is stated or anthorities cited, are taken to be abandoned by him. Rule 28 of the Rules of Practice in the Supreme Court of North Carolina, 221 N.C 544, 562.
But as to the exceptions which are not so deemed abandoned on this appeal, prejudicial error is not made to appear. We treat them seriatim.
I. Exception No. 21 has this setting: On the cross-examination of defendant he was asked these questions, to which he gave answers indicated:
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' Objection by defendant--overruled. Defendant excepts. ' In this connection the record discloses that one witness for the State and two for defendant had referred previously to defendant's Cadillac automobile. The first State's witness, L. G. McGill, in describing the defendant's place of business and its surroundings at the time he says he went there for the alleged purchase of whiskey, testified: 'His Cadillac automobile was sitting out in front,--his place doesn't have any gas at it. ' And one of defendant's witnesses testified: 'I was there when the Cadillac was out at the side of the building,--it sits there a big part of the time. ' And the other, referring to defendant, testified, 'John and I go fishing in that Cadillac. ' These statements having been admitted in evidence without objection, it would seem that the reference to the Cadillac in the questions and answers quoted above would be harmless. And defendant's answer to the question as to what he paid for the Cadillac negatives any harmful effect of the question.
II. Exceptions 31 and 32 are directed to portions of the charge of the jury in which the court was stating contentions of the State upon the evidence offered. Defendant complains that in stating these contentions the court so emphasized the State's contention that defendant had been previously convicted of selling intoxicating...
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