State v. Sorrell

• Citation: 98 N.C. 738,4 S.E. 630
• Court: United States State Supreme Court of North Carolina
• Decision Date: 23 December 1887
• Parties: State v. Sorrell.

4 S.E. 630

98 N.C. 738

State

v.Sorrell.

Supreme Court of North Carolina.

December 23, 1887.

Indictment—Election—Effect of Verdict.

On the trial of an indictment containing three counts the prosecution elected to rely on one only, and a verdict of guilty was rendered. Held, that it was not proper to grant a motion made by defendant to enter a verdict of not guilty as to the other two, as no such verdict was rendered, but that the election to rely on one of the counts was equivalent to such a verdict.¹

2. Intoxicating Liquors—Illegal Sales—Burden op Proof.

On trial of an indictment for the unlawful sale of spirituous liquors, the prosecution having proved the sale as charged in the indictment, the burden is on the defendant to show that the sale was made under license.

3. Same—Illegal Sales—Arrest of Judgment—Judicial Notice—Local Option.

An Indictment charged the sale of spirituous liquors by a measure less than one quart, and defendant moved in arrest of judgment on the ground that no offense was charged, as the sale of liquors in the locality was forbidden by virtue of proceedings had under Code N. C. §§ 3112-8117, providing for local prohibition. Held, that the court could not take notice of matter not appearing on the record, and that the question should have been raised on the trial.

Appeal from superior court. Wake county; Shepherd, Judge.

Indictment for unlawfully selling spirituous liquors. One Sorrell, the defendant, was charged with selling liquors by a measure less than one quart, and, on conviction, he appealed.

The Attorney General, for the State. John Gatling, for appellant.

Merrimon, J. The indictment contained three distinct counts. The solicitor for the state elected, at the close of the evidence on the trial, to rely upon only the third count for retailing spirituous liquors by a measure less than one quart, and upon this count there was a verdict of guilty, the jury saying nothing as to the first and second counts; and as to each of them the solicitor, after verdict and before judgment, entered a nolle prosequi.

This latter entry had no legal effect; it was void. The election to try upon the third count at the stage of the trial mentioned, was equivalent to a verdict of not guilty as to the other two. This was the legal effect, and hence it was not necessary, indeed not proper to grant the motion of the defendant to enter a verdict of not guilty as to them. There was no such verdict rendered, and entries should be made only according to the fact of any matter to be entered...