State v. Simmons

• Decision Date: 22 February 1922
• Docket Number: (No. 1.)
• Citation: 110 S.E. 591
• Court: North Carolina Supreme Court
• Parties: STATE . v. SIMMONS.

110 S.E. 591

STATE .

v.SIMMONS.

(No. 1.)

Supreme Court of North Carolina.

Feb. 22. 1922.

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

Roscoe Simmons was convicted of a violation of the liquor laws, and he appeals. No error.

The defendant was indicted in three counts: (1) Having in his possession a quantity of intoxicating liquors, for the purpose of sale, to wit, nine quarts of grape brandy. (2) Transporting the same from one point within the state to another point in the state. (3) The receipt of the same in 15 days. General verdict of guilty. Judgment. Appeal by defendant.

Aydlett & Simpson and Thompson & Wilson, all of Elizabeth City, for appellant.

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

CLARK, C. J. The evidence for the state was that the chief of police of Elizabeth City, accompanied by two officers, about 11 o'clock at night, went to the house where Bessie McGee lived. Soon after they arrived an automobile drove up, and three persons got out, to wit, the defendant (Roscoe Simmons) and two others. Simmons was carrying in his hand a grip, and went with it into the house. Sending one of his men to the back door of the house, the chief of police with the other officer immediately followed the parties into the house. The defendant, seeing the officers entering at the front, attempted to make his escape at the rear, though he testified that he went to the back porch to get some water. The grip that Simmons carried into the house, when examined by the officers, was found to contain eight quarts, which smelt like peach brandy, and they testified that in their opinion it was intoxicating liquor.. The officers arrested Simmons and Bessie McGee and took charge of the grip with the eight quarts of liquor, which was introduced in the evidence by the state, and under objection by the defendant the jury was permitted to smell it and taste it, if they desired, to determine whether it was intoxicating or not. The officers at the time of the arrest had no warrant for the arrest of the parties, and, though something was said in the evidence about a search warrant, it is admitted thatit was not In legal form, and Is not considered.

The defendant presents two points: (1) That the liquor, having been obtained on an illegal search warrant, was not admissible as evidence; (2) that the court committed error in permitting the jury to smell and taste the liquor.

The officers found the liquor in actual possession of the defendant, with grounds, in their judgment, to believe that it was an illegal article, and had a right to seize the same. State v. Campbell, 182 N. C. —, 110 S. E. SO. It was for the jury to decide whether it was intoxicating liquor, and it was permissible for them to use their sense of taste and smell in passing upon the question. They were not restricted to the testimony of the officers who acquired the information upon which they based their opinion by the same method.

If intoxicating, as the jury found upon the testimony of the officers, corroborated possibly by their own sense of taste and smell, the defendant was properly found guilty, for he was illegally transporting spirituous liquor and also under C. S. § 3379, he was prima facie guilty of having more than a gallon in his possession for the purpose of sale.

The defendant in his evidence contented himself with testifying that he had nothing to do with the suit case, and knew nothing of its contents, and that Satterfield carried the suit case into the house, but he did not testify that he was carrying this liquor for his own use. State v. Coleman, 178 N. C. 757, 101 S. E. 261. If he had so testified, the jury were at liberty to draw a different inference from the defendant's possession of eight quarts. The defendant contends that the grip and the liquor were illegally captured, and therefore it was not admissible in the evidence against him. The capture of eight quarts, which the Jury found was in the possession of the defendant, raised prima facie the presumption that it was illegally in his possession, and...