Appeal
from Superior Court, Columbus County; Sinclair, Judge.
W. C
Norris was convicted of unlawfully purchasing, possessing
selling, and transporting intoxicating liquors, or possessing
equipment or ingredients for manufacture thereof, and he
appeals.
No
error.
The
bill of indictment is as follows:
"The
Jurors for the State upon their oath present, That W. C
Norriss, late of the County of Columbus, on the 1 day of
October, 1932, with force and arms, at and in the County
aforesaid, did unlawfully and willfully purchase, possess,
sell, transport, intoxicating liquors or possess
equipments, implements or ingredients for the purpose of
manufacturing intoxicating liquors against the form of the
statute in such case made and provided and against the
peace and dignity of the State.
Kellum,
Solicitor"
A true
bill was found by the grand jury against the defendant. The
defendant entered a plea of not guilty and a plea of former
jeopardy.
The
evidence on the part of the state was as follows:
H. B.
Bruton testified in part: "I went there with a search
warrant and found some liquor out in the field. There were
three pints and some in a fruit jar; three short pints. We
found it out in Mr. Norris' field. It was about as
close to his house as from here to the end of the court
house there. It was under some pea vines. I saw his wife go
out in the field and hide it. She carried it from somewhere
about the house. The defendant at the time was out in the
field not far from the house, working, feeding his hogs. We
found two cases of home brew in the chicken coop, put on
two pieces over the door. The cases were like Coco Cola
cases or bottled stuff. I reckon there were three dozen
bottles to the case. I believe that's what there was. I
never counted it. I believe there were three dozen to the
case. That's about all I know about it. We found an old
stand, a gasoline drum in the edge of the yard, wrapped up
in some sacks. The sacks were not big enough to hold it;
they were laid over it. I examined the drum. It had been
smutted and it looked like it had been around fire, and it
smelled like beer, the kind of beer they make whiskey out
of. I don't remember whether or not we found any clay
or mud on it about the top of it. I didn't go in the
house; Mr. Watson and Mr. Stephens went in the house. I
could not swear that the home brew is intoxicating. I have
heard that the liquor they call home brew is intoxicating.
We carried the home brew to Tabor."
N. A.
Watson testified in part as follows: "I went up there
with Mr. Stephens, and Mr. Stephens called Mr. Norris'
attention to the search warrant he had to search his place,
and he was going to feed some hogs, and he didn't go back
with us and we drove the car in the yard, and his daughter
run in the house, and I says, 'Boys, we will have to go
now, or we won't get it,' and we went in the house
and his wife run out with something in her lap, and his
oldest boy taken two jugs under his arms and went across the
field, and she put the liquor in the pea vines. Me and Mr.
Bruton run up and we got the liquor and brought it to the
house, and we found several jars and jugs in there that had
had liquor in them, and we found two cases of home brew. I
don't know whether there was two dozen or three dozen in
the case. We did not catch the boy. He run across the branch
pouring the liquor out on the way, and we could smell it on
the bushes. They were about half-gallon jars. The boy was a
good runner, and he had a pretty good start on us. His
daughter taken some sacks and throwed them over that old drum
that looked to be about a thirty gallon drum and it had clay
on it, and she covered it up with some little bags, and it
had four brackets and it was smooty, and there were two fifty
gallon barrels that had had mash in them, and they were
muddy, and right back of the barn was a ditch that went
through his field, and there was where the stuff had been
poured out, or in, on Friday night and this was Saturday
morning. That was the old mash. We found the place where the
rig had been. There was a hole about like the size of the
barrel, and the coals had been raked back in there, and they
were still hot. I could not stand my hand in it, and there
were some trees broke over the place to hide it. From the
house the hole was about as far as that building across on
the corner, fifty or seventy-five yards probably. The barn
was between this hole, the ditch and the house. The field was
between this hole, the ditch and the house. It was right side
the ditch and there was a bridge below where the still was,
or at least where it looked like it was manufactured, and he
had the two empty barrels in his barn."
"The
defendant offered and the State admitted in evidence Judgment
Docket #4, County Recorder's Court, Columbus County,
Judgment #4214, which reads as follows: State vs. W. C.
and Jetty Norris, October 11, 1932; N. P. Docketed
October 11, 1932.
The
notation 'N. P.' was admitted by the state to
indicate a Nolle Prosequi."
Defendant
introduced E. A. Maultsby, judge of the recorder's court,
as a witness. The record is as follows:
"Q.
Did you
try the case pending at bar now?
Mr.
Kellum: Objection.
Q. Did
you try the case of State vs. W. C. Norris and Jetty Norris?
Mr.
Kellum: Objection.
Court:
That is not contradicting the record.
A. Yes,
sir.
Q. Go
ahead and tell just what happened at the trial? A. They were
indicted for having whiskey still in their possession, is my
recollection.
Mr.
Kellum: It occurs to us that, this being a Court of record,
that the record would show what took place with reference to
that case.
Court:
Yes, sir, you can't contradict the record.
Q. Did
you hear the evidence?
Mr.
Kellum: Objection.
A. Yes,
sir.
Q. What
disposition did you make of the case of State vs. W. C.
Norris and Jetty Norris?
Mr.
Kellum: Objection.
Sustained."
At the
close of all the evidence the defendant moved for a directed
verdict of not guilty. Motion overruled. Defendant excepted.
The
defendant moved that the jury be instructed, upon all the
evidence, that as a matter of law the defendant should be
discharged as having been placed in former jeopardy in the
trial in the recorder's court. Motion overruled.
Defendant excepted.
Whereupon,
his honor charged the jury as follows: "[The Court
instructs you if you find beyond a reasonable doubt the facts
as shown by the testimony of all the witnesses and the record
evidence, it will be your duty to return a verdict of
guilty.] If you do not believe the witnesses, you would
return a verdict of not guilty.
"To
so much of His Honor's charge as is in brackets above the
defendant excepts."
The
jury returned a verdict of guilty. Judgment was rendered by
the court below on the verdict. The defendant assigned errors
on the above exceptions and appealed to the Supreme Court.
CLARKSON
Justice.
The
first exception and assignment of error of defendant is as
follows: "For that the Court refused to direct the Jury
to return a verdict of not guilty." This exception and
assignment of error cannot be sustained. C. S. § 4643 is as
follows:
"When
on the trial of any criminal action in the superior court,
or in any criminal court, the state has produced its
evidence and rested its case, the defendant may move to
dismiss the action or for judgment of nonsuit. If the
motion is allowed, judgment shall be entered accordingly;
and such judgment shall have the force and effect of a
verdict of 'not guilty' as to such defendant. If
the motion is refused, the defendant may except; and if the
defendant introduces no evidence, the case shall be
submitted to the jury as in other cases, and the defendant
shall have the benefit of his exception on appeal to the
supreme court.
Nothing
in this section shall prevent the defendant from introducing
evidence after his motion for nonsuit has been overruled; and
he may again move for judgment of nonsuit after all of the
evidence in the case is concluded. If the motion is then
refused, upon consideration of all of the evidence, the
defendant may except; and, after the jury has rendered its
verdict, he shall have the benefit of such latter exception
on appeal to the supreme court. If defendant's motion for
judgment of nonsuit be granted, or be sustained on appeal to
the supreme court, it shall in all cases have the force and
effect of a verdict of 'not guilty."'
This
section serves, and was intended to serve, the same purpose
in criminal prosecutions as is accomplished by section 567 in
civil actions. State v. Fulcher, 184 N.C. 663, 113
S.E. 769; State v. Sigmon, 190 N.C. 687, 130 S.E.
854.
This
motion of the defendant was made at the close of all the
evidence. No motion of nonsuit or to dismiss under the above
statute was made. We think there was plenary evidence to be
submitted to the jury. The second exception and assignment of
error of defendant is as follows: "The defendant moved
that the Jury be instructed upon all the evidence that as a
matter of law, the Defendant should be discharged as having
been placed in former jeopardy in the trial in the
recorder's Court." This exception and assignment of
error cannot be sustained.
In
State v. Thornton, 35 N.C. 256-258: "A Nol.
Pros. in criminal proceedings is nothing but a declaration on
the part of the prosecuting officer that he will not at that
time prosecute the suit farther. Its effect is to put the
defendant without day; that is, he is discharged and
permitted to leave the court, without entering into a...
