State v. Poythress

• Decision Date: 24 October 1917
• Docket Number: 315.
• Citation: 93 S.E. 919,174 N.C. 809
• Parties: STATE v. POYTHRESS.
• Court: North Carolina Supreme Court

93 S.E. 919

174 N.C. 809

STATE v. POYTHRESS.

No. 315.

Supreme Court of North Carolina

October 24, 1917

Appeal from Superior Court, Durham County; Kerr, Judge.

J. A Poythress was convicted of illegally trafficking in liquors and he appeals. No error.

If accused has in a suitcase at one time 27 pints of whisky, he is guilty of "receiving in one package more than one quart."--

The defendant was charged with the following crimes: (1) That he engaged in the business of selling, exchanging, bartering, or giving away spirituous liquors, for the purpose of gain directly or indirectly; (2) that he had in his possession 27 pints of such liquors for the purpose of sale; (3) that he received at one time, and in one package, more than one quart of whisky, to wit, 27 pints. There is an averment in the verified complaint that all these acts were unlawfully willfully and maliciously done, and were committed against the statute, and against the peace and dignity of the state. The name of the defendant was omitted from the complaint, the words in that part of the charge where the name should appear being:

"That on or about April 24th, with force and arms, in the county aforesaid and within Durham township, did willfully," etc.

The warrant of arrest, which was issued at the time the complaint was filed, contained the name of the defendant, and is partly in these words:

"These are therefore to command you forthwith to apprehend the said J. A. Poythress * * * to answer the above charge set forth in the affidavit, and be dealt with according to law."

Defendant pleaded "not guilty" before the recorder, and was tried, and, having been convicted and sentenced, he appealed. There was no motion to quash, or to arrest the judgment before the recorder, so far as appears. In the superior court the solicitor moved to insert two counts in the charge, and was allowed to do so, as follows:

"And did unlawfully and willfully sell to London Whitted on the 1st day of February, 1917, 20 pints of whisky, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state. And, further, that the said J. A. Poythress, on the 1st day of January, 1917, in Durham county, state aforesaid, did unlawfully and willfully sell to persons to the court unknown spirituous liquors, to wit, one pint, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the court."

The jury returned a verdict of guilty, judgment was entered thereon, and defendant, after moving unsuccessfully to arrest the judgment, again appealed.

R. S. McCoin, of Henderson, and Brawley & Gantt, of Durham, for appellant.

James S Manning, Atty. Gen., and Robert H. Sykes, Asst. Atty. Gen., for the State.

WALKER, J. (after stating the facts as above).

The complaint did not allege any offense against the defendant, as his name was not mentioned therein, but the warrant refers distinctly to the complaint, and besides was physically annexed to it. When this is the case, it may supply any omission or deficiency in the former, and if the two, when considered together as parts of the same proceeding, sufficiently inform the defendant of the accusation made against him, nothing else is necessary to be done. We so held in State v. Yellowday, 152 N.C. 793, 67 S.E. 480, where it was said:

"The second objection is that the allegations of the complaint or affidavit were not inserted in the warrant; but this is untenable, as the warrant clearly refers to the affidavit and called upon the defendant to answer its allegations. This is all that the law requires in such a case"

--citing State v. Winslow, 95 N.C. 649; State v. Davis, 111 N.C. 729, 16 S.E. 540; State v. Sharp, 125 N.C. 634, 34 S.E. 264, 74 Am. St. Rep. 663; State v. Yoder, 132 N.C. 1113, 44 S.E. 689. To which we add State v. Sykes, 104 N.C. 694, 10 S.E. 191.

In those cases the affidavit, or original charge, was essentially changed, and yet it was held that the superior court had the power to amend it. It has also been held by this court that if the defendant is before the court, without regard to the manner by which he was brought there, the court will not release or discharge, but proceed against him criminally for any offense, within its jurisdiction, which he may have committed, although not the one for which he was arrested. State v. Cale, 150 N.C. 805, 63 S.E. 958, 134 Am. St. Rep. 957, 17 Ann. Cas. 421. Bishop's New Criminal Procedure, § 235, subsec. 1, says:

"From the principles stated, it seems, if a warrant of arrest is insufficient or void, if the accused person is brought before the magistrate under it, he is not therefore to be set at liberty, whatever may be his rights as against the officer and others connected with its proceedings."

The other objections and exceptions by the defendant relate principally to the ruling of the court allowing amendments to the warrant. The policy of the law as evidenced by section 1467 of the Revisal and numerous decisions of this court is one of liberality in allowing amendments in the superior court to warrants issued by justices of the peace, and such amendments are allowed even after verdict (State v. Smith, 103 N.C. 410, 9 S.E. 200), and even after a special verdict (State v. Telfair, 130 N.C. 645, 40 S.E. 976). The only restriction would seem to be that the amendment must be made to conform to evidence elicited on the trial, as shown by the record. State v. Baker, 106 N.C. 758, 11 S.E. 360. The effect of this amendment was to add two additional counts to the charge, upon which the defendant was being tried, both amendments conforming to the evidence elicited on the trial, as appeared from the record, and both amendments abundantly supported and sustained by evidence offered at the trial. Much of this evidence, as appears, was not objected to by the defendant, and if believed by the jury, established the guilt of the defendant, and further showed that he had persistently carried on the business of a "blind tiger," and dealt in large quantities, and did not merely conduct a small business of selling liquor by the drink or by the half pint. The evidence, if believed by the jury, was amply sufficient to convict the defendant upon the first count in the warrant, which is made a criminal offense by section 1, chapter 44, of the Public Laws of 1913; on the second count in the warrant by section 2, chapter 97, of the Public Laws of 1915; on the third count by section 2, chapter 44, of the Public Laws of 1913. These sections have been lately construed by this court in the case of State v. Carpenter, 92 S.E. 373 (May 2, 1917). If the defendant had in a suit case at one time 27 pints of whisky, that would be receiving in one package more than one quart.

If his honor had the power to permit the amendments upon the motion of the solicitor for the state, then it seems to be conceded in the brief of the defendant's cou...