State v. Simons

• Decision Date: 24 September 1919
• Docket Number: 162.
• Citation: 100 S.E. 239,178 N.C. 679
• Parties: STATE v. SIMONS.
• Court: North Carolina Supreme Court

100 S.E. 239

178 N.C. 679

STATE v. SIMONS.

No. 162.

Supreme Court of North Carolina

September 24, 1919

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

W. L Simons was convicted of having whisky in his possession with intent to sell the same, and he appeals. No error.

The defendant was convicted on a charge that he "did unlawfully and willfully have in his possession illicit whisky, three gallons, with the intent to sell, and did unlawfully and willfully receive at one time and in one package more than one quart of intoxicating liquor, contrary to law." Verdict and sentence. Appeal by defendant.

The evidence was that a constable with a search warrant for whisky went to defendant's house; that he read the warrant to the defendant, who also read it. The defendant asked the officer to go in the house with him. They went through a narrow passage, to a back room, when the defendant reached up and grabbed his pistol from a shelf; but the officer was too quick for him, and, presenting his own pistol, made the defendant put his down. The defendant then said that he did not have but one quart of whisky, and he would be damned if any man was going to search his house or have it. The officer, however, did search his house. The defendant pulled out one quart from behind the bureau, and after some conversation he also handed out 3 gallons of corn whisky. The other officer who was with the constable gave the same evidence. The defendant did not put on any testimony and the above evidence was not contradicted.

In prosecution for having possession of intoxicating liquor for purpose of sale, evidence that, two months after such liquor had been found in defendant's possession, defendant had constructed a new still, and was working on another, was competent.

Albion Dunn, of Greenville, for appellant.

Frank Nash, Asst. Atty. Gen., for the State.

CLARK C.J.

The statute (Laws 1913, c. 44, § 2) makes "the possession of more than one gallon of spirituous liquors at any one time," whether in one or more places "prima facie evidence of having it for the purpose of sale."

The defendant makes no exception to the charge, and therefore it is presumed that the judge charged in accordance with the law. The defendant put on no evidence whatever to contradict the testimony that he had three gallons and a quart, though he had denied having any, and he attempted to shoot the officer.

The sole exception is to the testimony of the sheriff that in August, 1919, he was at the defendant's house, and "found a new still, almost completed, on which the defendant was working, and he had nearly enough copper for another one."

The exception is upon the ground that, as the whisky had been found in possession of the defendant on 2d June, this testimony was "irrelevant and incompetent." The evidence of the finding of the three gallons and a quart being uncontradicted, the jury found in accordance with the prima facie presumption, corroborated, as it was, by defendant's denial and his attempt to shoot. The evidence excepted to, at the most, was unnecessary, but not incompetent.

There are offenses which are committed in sudden temper, or under violent provocation, or by the impulse of passion. As to these, the only competent evidence is what took place at the time. State v. Norton, 82 N.C. 630. But the crime of illicit dealing in intoxicating liquor is in the same class with larceny, counterfeiting, forgery, obtaining money under false pretenses, and burglary; which are all committed with deliberation, in defiance of law, and for the ignoble motive of making profit thereby. In all such cases it is competent to prove intent by showing matters of like nature before or after the offense. If one is found in possession of counterfeit money, it would be competent to show that in a reasonable time thereafter he was working on an apparatus for counterfeiting or had passed other counterfeit notes, even though it should fix him with guilt of another offense. State v. Twitty, 9 N. C. 248. And the same is true as to the counterfeiting coin. If the charge is forgery evidence is competent that the defendant was found not long afterwards in possession of other forged notes, or had passed other forged notes, or was in possession of chemicals and other apparatus used for that purpose. 2 Whart. Cr. Law (11th Ed.) § 920, note 7. Or if there was evidence that the defendant was found at night in a dwelling house with burglary tools, the fact that he was found not long afterwards fashioning and shaping such tools, this would be competent evidence.

The question when evidence of other crimes is competent is discussed in People v. Molineux, 168 N.Y. 264, 61 N.E. 286, which is reprinted with an admirable analytical table and very full notes (62 L. R. A. 193-357), which leaves nothing to be added. The subject is fully discussed in a line of decisions in this state. In State v. Murphy, 84 N.C. 742, it is held:

"Evidence of a 'collateral offense' of the same character, and connected with that charged in an indictment, and tending to prove the guilty knowledge of the defendant, when that is an essential element of the crime, is admissible."

This is a very clear discussion by Judge Ashe as to the instances in which such evidence is competent to show the quo animo intent, design, guilty...