State v. Snipes

• Decision Date: 16 May 1923
• Docket Number: 466.
• Citation: 117 S.E. 500,185 N.C. 743
• Parties: STATE v. SNIPES.
• Court: North Carolina Supreme Court

117 S.E. 500

185 N.C. 743

STATE v. SNIPES.

No. 466.

Supreme Court of North Carolina

May 16, 1923

Appeal from Superior Court, Caldwell County; Finley, Judge.

C. L Snipes was convicted of receiving more than one quart of whisky in 15 days, and he appeals. New trial.

Clark C.J., dissenting.

The indictment contains three counts. In the first the defendant is charged with having liquor in his possession for the purpose of sale; in the second, with receiving at a point within the state at one time spirituous liquor in a quantity greater than one quart; and in the third, with receiving at a point within the state in one package spirituous liquor in a quantity greater than one quart.

Will Beach, a witness for the state, testified that he, the defendant, and two other men were traveling in an automobile which broke down, and that he and the defendant went into the woods to get some blocks to put under the car in order to prize it up for repairs; that while they were in the woods the defendant raked off some leaves and took out of the ground a half-gallon fruit jar containing about three pints of whisky; that, when the sheriff came up, the witness had the whisky in his possession; and that he had pleaded guilty to a breach of the statute at the November term. On cross-examination he testified that he was not certain who took the whisky out of the ground, but on the redirect examination he said that the defendant walked straight to the whisky and found it, and that his best impression was the defendant took it from the ground and delivered it to the witness.

The judge charged the jury, if they were satisfied from the evidence beyond a reasonable doubt that the defendant unlawfully and willfully got more than a quart of whisky at one time in one package and took it into his possession, he would be guilty. For their verdict the jury said:

"We find the defendant guilty of receiving more than one quart of whisky in 15 days."

Judgment was pronounced, and the defendant appealed.

Lawrence Wakefield, of Lenoir, for appellant.

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

ADAMS J.

It is necessary to consider the verdict with reference to the second and third counts only, for as to the first there was no instruction by the court and presumably no consideration and certainly no verdict by the jury.

The defendant first moved to dismiss the action on the ground that the evidence, if accepted, did not show that he had received any whisky within the meaning of the statute; that finding a thing and taking it into one's possession is not synonymous with receiving it. We are therefore required to construe the statute (C. S. § 3385), and in construing it to ascertain the object intended to be accomplished, and to enforce the intention of the Legislature by applying the spirit or reason rather than the letter of the law. 36 Cyc. 1106. An examination of the phraseology of the statute and of the history of the legislation relating to prohibition convinces us that the purpose of the law is to prevent any person from acquiring or taking into his possession within the state at any one time or in any one package spirituous or vinous liquors or intoxicating bitters in a quantity greater than one quart or malt liquors in a quantity greater than five gallons, and that in the accomplishment of this purpose the General Assembly did not intend to indulge in nice distinctions or to restrict the meaning of the word "receive" to the narrow compass of "accepting from another."

The evidence is easily susceptible of the interpretation that some other person had concealed the liquor for the benefit of the defendant, who no doubt with knowledge of the exact spot "walked straight to it" and took the vessel from the ground. When the defendant thus acquired or took the liquor into his possession, he received it in the sense in which the word "receive" is used in the statute. Knipe v. Austin, 13 Wash. 189, 43 P. 25, 44 P. 531; Baker v. Keiser, 75 Md. 332, 23 A. 735; Early v. Friend, 16 Grat. (Va.) 21, 78 Am. Dec. 649; West v. Weyer, 46 Ohio St. 66, 18 N.E. 537, 15 Am. St. Rep. 552.

The next question is more serious. When the verdict was returned, the defendant moved to set it aside and excepted to the adverse ruling of the court; and when judgment was pronounced the defendant again excepted.

With respect to the verdict of a jury in a civil or criminal action the following principles are generally recognized and applied:

(1) A verdict must be certain and responsive to the issue or issues submitted by the court. Clark's Cr. Pro. 480 et seq.; Bishop's Cr. Pro. 867; 16 C.J. 1103; State v. Whitaker, 89 N.C. 472; State v. Whisenant, 149 N.C. 515, 63 S.E. 91; State v. Parker, 152 N.C. 791, 67 S.E. 35; State v. Lemons, 182 N.C. 828, 109 S.E. 27.

(2) While a change merely as to form is not fatal, the court cannot amend or change a verdict in any matter of substance without the consent of the jury, and cannot do so with their consent after the verdict has been finally accepted and recorded; but, if a verdict is responsive to the issue or issues submitted and is otherwise sufficient, additional words which are not a part of the legal verdict may be treated as surplusage, as, for example, a verdict of guilty with a recommendation of mercy. Clark's Cr. Pro., supra; State v. Hudson, 74 N.C. 246; State v. Whitaker, supra; State v. Kinsauls, 126 N.C. 1095, 36 S.E. 31; State v. Godwin, 138 N.C. 583, 50 S.E. 277; State v. Whisenant, supra; State v. McKay, 150 N.C. 816, 63 S.E. 1059; State v. Hancock, 151 N.C. 699, 66 S.E. 137; State v. Parker, 152 N.C. 790, 67 S.E. 35; State v. Murphy, 157 N.C. 615, 72 S.E. 1075.

(3) Where the indictment contains several counts, and the evidence applies to one or more, but not to all, a general verdict will be presumed to have been returned on the count or counts to which the evidence relates. Morehead v. Brown, 51 N.C. 369; State v. Long, 52 N.C. 26; State v. Leak, 80 N.C. 404; State v. Thompson, 95 N.C. 597; State v. Stroud, 95 N.C. 627; State v. Cross, 106 N.C. 650, 10 S.E. 857; State v. Toole, 106 N.C. 736, 11 S.E. 168; State v. Gilchrist, 113 N.C. 673, 18 S.E. 319; State v. May, 132 N.C. 1021, 43 S.E. 819; State v. Gregory, 153 N.C. 646, 69 S.E. 674; State v. Poythress, 174 N.C. 813, 93 S.E. 919; State v. Strange, 183 N.C. 775, 111 S.E. 350.

(4) Where the indictment contains several counts, and there is a verdict of guilty as to some, but no verdict as to the others, the failure to return a verdict as to the latter is equivalent to a verdict of not guilty. State v. Thompson, supra; State v. Cross, supra.

(5) If a verdict as returned is not complete, but is ambiguous in its terms, the ambiguity may sometimes be explained, and the verdict construed by reference to and in connection with the evidence and the charge of the court. Greenleaf v. Railroad, 91 N.C. 33; State v. Gilchrist, 113 N.C. 676, 18 S.E. 319; State v. Gregory, 153 N.C. 648, 69 S.E. 674; Richardson v. Edwards, 156 N.C. 590, 72 S.E. 482; Donnell v. Greensboro, 164 N.C. 331, 80 S.E. 377; Bank v. Wilson, 168 N.C. 557, 84 S.E. 866; Reynolds v. Ex. Co., 172 N.C. 487, 90 S.E. 510, Ann. Cas. 1918C, 1071; Price v. Railroad, 173 N.C. 397, 92 S.E. 182; Grove v. Baker, 174 N.C. 747, 94 S.E. 528; Wilson v. Jones, 176 N.C. 207, 97 S.E. 18; Jones v. Railroad, 176 N.C. 260, 97 S.E. 48; Balcum v. Johnson, 177 N.C. 218, 98 S.E. 532; Howell v. Pate, 181 N.C. 117, 106 S.E. 454.

The statute upon which the second and third counts are based makes it unlawful for any person to receive at any one time or in any one package within the state any of the liquors described in a quantity greater than one quart. There is another statute (C. S. § 3386) which makes it unlawful for any person during the space of 15 consecutive days to receive such liquors in a quantity or quantities totaling more than one quart. The difference between the two statutes is readily observable. In a prosecution upon the first it must be shown that the liquor was received at one time or in one package. In a prosecution upon the second it must appear that during the space of 15 consecutive days liquor was received in a quantity or quantities totaling more than one quart. And the verdict must respond to the charge. It will also be observed that the statute last referred to is not included in either count and is not referred to in the indictment; but the jury, instead of considering the issues raised by the second and third counts and submitted in his honor's charge, disregarded the charge and the issues and convicted the defendant of receiving more than one quart of whisky in 15 days--a crime with which he was not charged and concerning which his honor gave the jury no instruction. The verdict is not responsive to the issue joined on either of the counts because there is no finding that the liquor was received at any one time or in any one package; and it cannot be amended or changed or construed by reference to the evidence and the charge because it is not ambiguous, but is clear and complete. It was accepted and recorded as it was returned, and it shows unequivocally that the jury did not convict the defendant of any offense with which he was charged or for which he was prosecuted. If the defendant should again be prosecuted on the second and third counts, his plea of former conviction could not be upheld on the verdict as it now appears. It must be understood that the question is not whether the evidence is sufficient to sustain the counts in the bill or to show the receipt of more than one quart of liquor in 15 consecutive days. The paramount question is whether a man who is prosecuted for one crime can lawfully be convicted of another. There can be only one answer. To punish...