State v. Saleeby

• Decision Date: 15 March 1922
• Docket Number: 162.
• Parties: STATE v. SALEEBY.
• Court: North Carolina Supreme Court

110 S.E. 844

183 N.C. 740

STATE v. SALEEBY.

No. 162.

Supreme Court of North Carolina

March 15, 1922

Appeal from Superior Court, Pitt County; Horton, Judge.

Nick Saleeby was convicted of possessing for sale, and selling liquor, and he appeals. Affirmed.

The defendant was arrested on a warrant issued from the mayor's court of Greenville charging: (1) Possession of liquor for sale; and (2) charging the sale thereof to one Guy Caton; and was bound over to the recorder's court. Under section 3, chapter 681, Public Local Laws 1915, establishing an inferior court for Pitt, the judge was given power to transfer any cause therein pending to the superior court and, the defendant desiring a jury trial, the case was transferred to the superior court. And from the general verdict of guilty and sentence the defendant appealed.

The failure of the state to prove a sale of liquor to the person named in the warrant upon which defendant based her motion for a nonsuit was obviated by the fact that he put in evidence and the state in reply proved a sale to such person.

Albion Dunn, of Greenville, for appellant.

The Attorney General and the Assistant Attorney General, for the State.

CLARK C.J.

The defendant was convicted upon both counts on a general verdict. There was evidence of the sale of liquor by the defendant to the three state's witnesses and also that the defendant was a source from whom the bell boys of the Proctor Hotel had obtained whisky for the past two years for guests at that hotel.

The defendant's first assignment of error was that there was no bill of indictment by the grand jury. It was not necessary that a bill of indictment should have been found against the defendant in the superior court, as the lower court had jurisdiction of this misdemeanor. State v. Lytle, 138 N.C. 738, 51 S.E. 66; State v. Boyd, 175 N.C 791, 95 S.E. 161; State v. Publishing Co., 179 N.C. 720, 102 S.E. 318.

The defendant moved for a nonsuit at the close of the state's evidence, because there was no evidence at that time of the sale to Guy Caton, but that was obviated by the fact that the defendant put on evidence and the state in its reply proved a sale to Guy Caton. State v. Ingram, 180 N.C. 673, 105 S.E. 3. Besides C. S. 3383 provides: "It shall not be necessary to allege a sale to a particular person" ( State v. Brown, 170 N.C. 714, 86 S.E. 1042), and the allegation in the warrant of the sale to Caton, even if it had not been proven, would have been mere surplusage. State v. Lemons, 182 N.C. 829, 109 S.E. 27.

The case on appeal contained an assignment of error in the charge, but the Attorney General moved the court for leave to correct the statement of the case in that particular, alleging an inadvertence in making up the case on appeal, and the willingness of Judge Horton, if given an opportunity, to correct the mistake. This court has repeatedly held that it will not correct a statement of a case on appeal unless the party moving for such corrections makes it clear to the court, usually by letter from the judge, that he will make the correction if given the opportunity. Slocumb v. Construction Co., 142 N.C. 351, 55 S.E. 196, and cases there cited. On motion by the Attorney General and notice thereof to counsel for the defendant, the case on appeal was amended by the judge upon being given the opportunity to do so.

There being a general verdict upon two counts, if there is no error as to one, the verdict and judgment will stand. We, however, find no error as to the second count also. In the course of the argument the solicitor stated to the jury that--

"They could not afford not to convict the defendant for the reason that he had sold so much liquor in town that an indignation meeting had been held in front of the National Bank about this matter."

In apt time, and immediately upon this statement, the counsel for the defendant arose and objected to the remark, for the reason that there was no evidence to support the...