State v. Suddreth

• Decision Date: 24 November 1943
• Docket Number: 289.
• Citation: 27 S.E.2d 623,223 N.C. 610
• Parties: STATE v. SUDDRETH.
• Court: North Carolina Supreme Court

27 S.E.2d 623

223 N.C. 610

STATE v. SUDDRETH.

No. 289.

Supreme Court of North Carolina

November 24, 1943

Defendant was tried and found guilty in Recorder's Court of Caldwell County on January 19, 1943 upon warrant sworn out January 2, 1943, charging defendant with unlawful possession on December 25, 1942, of "a quantity of intoxicating liquors for the purpose of sale". Judgment of the court was that defendant be confined in the common jail of Caldwell County for a period of six months and assigned to work on the roads under the control and supervision of the State Highway and Public Works Commission to be suspended upon payment of a fine of $50 and costs. Defendant appealed therefrom to Superior Court of Caldwell County.

At February term, 1943, of Superior Court of Caldwell County, a bill of indictment was found by the grand jury charging defendant in separate counts with (1) "unlawful possession of intoxicating liquors for purpose of sale", (2) unlawful possession of intoxicating liquors for beverage purposes, (3) unlawful transportation of intoxicating liquors, (4) unlawful sale of intoxicating liquors, and (5) unlawful purchase of intoxicating liquors, all on December 25, 1942. At said term of Superior Court defendant pleaded not guilty and moved to quash the bill of indictment on the ground that as this is a case on appeal from the Recorder's Court, a court with final jurisdiction, it should be tried on the warrant and not upon a bill of indictment. Motion denied. Exception by defendant.

And on the trial in Superior Court upon the bill of indictment evidence for the State tends to show these facts: Defendant has a store on the ground floor and he, his wife and two children live upstairs over the grocery store in a certain building in Caldwell County. On December 20, 1942, officers of that County armed with a warrant therefor searched the premises of defendant for intoxicating liquor. While searching was going on defendant was downstairs in the grocery department, but he went upstairs while officers were there. His wife and his children were there, his wife upstairs in the living quarters, and two men were downstairs in the store. Five pints of bottled in bond tax-paid liquor, two pints of which were stuck in behind the seat of the settee, two pints in the back or behind the seat of the upholstered chair, and one pint between the mattress and springs of a bed were found upstairs in the living quarters. The seals had not been broken. A sixth pint was found at the back door where one of two men in the store was seen to stoop and "set something down". While the evidence fails to show whether the man set it down, or whether the seal on it was broken, it does show that it too was tax-paid whiskey. The officers saw some empty bottles there, and Officer Goble testified: "I saw some empty bottles. I can't tell whether they were whiskey bottles or not. The ones I saw looked more like wine bottles. I don't know whether he sells wine or not. I smelled of several of the bottles but couldn't tell exactly whether the odor was whiskey or not. It was just a kind of sour smell. *** The bottles I saw were wine bottles."

Motions for judgment as of nonsuit were overruled. C.S. § 4643. Defendant excepted.

The court submitted the case to the jury only upon the count charging defendant with unlawful possession of intoxicating liquors for purpose of sale.

Verdict: Guilty.

Judgment: The defendant pay a fine of $100 and costs, and be confined in the common jail of Caldwell County for a period of twelve months and assigned to work under supervision and control of State Highway and Public Works Commission, the sentence being suspended upon conditions named. Defendant moved in arrest of judgment.

Defendant appealed to Supreme Court and assigns error.

W.H. Strickland, of Lenoir, for appellant.

Harry McMullan, Atty. Gen., and George B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.

WINBORNE, Justice.

The record on this appeal fails to support defendant's exceptive assignment to the denial of his motion to quash the bill of indictment for that, while his appeal from a judgment of Recorder's Court upon warrant charging unlawful possession of intoxicating liquor for the purpose of sale on December 25, 1942, was pending in Superior Court, that court did not have jurisdiction to try him on a bill of indictment of latter date than the warrant, charging the same offense. The record contains nothing to show that the offenses are the same. There is no admission or finding of fact to this effect, and the fact that both the warrant and the bill of indictment charge that the offense took place on December 25, 1942, is not sufficient to indicate the identity of offense as a matter of law. Time is not of the essence of the offense, and the exact time need not be specified in the bill of indictment. C.S. § 4625, State v. Williams, 219 N.C. 365, 13 S.E.2d 617; State v. Moore, 222 N.C. 356, 23 S.E.2d 31; State v. Trippe, 222 N.C. 600, 24 S.E.2d 340. Hence, the record fails to present conflict of jurisdiction between the Recorder's Court under C.S. § 1567 and the Superior Court under C.S.Supp.1924, § 1437. Furthermore, while the record shows that motion to quash was made "before any evidence was offered", it is not clear that the motion was made before plea of not guilty was entered. If not made before such plea, the motion is addressed to discretion of the trial court, and is not reviewable on appeal. State v. Gibson, 221 N.C. 252, 20 S.E.2d 51.

Defendant's challenge to the ruling of the court below in denying his motions for judgment as in case of nonsuit, C.S. § 4643, presents for determination two basic questions: First: Where a person, the defendant in this case, has in his possession so-called tax-paid intoxicating liquors in quantity not in excess of one gallon, that is, alcoholic beverages of such quantity "upon which the taxes imposed by the laws of Congress of the United States or by the laws of this State" have been paid, in his private dwelling in a county in which the sale of such intoxicating liquors is not authorized under and by virtue of Chapter 49, Public Laws 1937, called the Alcoholic Beverage Control Act, nothing else appearing, is such possession now prima facie evidence that such intoxicating liquors are possessed by such person for the purpose of being sold?

This is the first time that this question has been so squarely presented to this Court as to require a decision on it. However, we are of opinion and hold that, in so far as applicable to such factual situation, such prima facie rule of evidence, prescribed by 3 C.S. § 3411(j), Section 10 of the Turlington Act, Chapter 1, Public Laws 1923, is in irreconcilable conflict with the provisions of the act of the General Assembly of 1937, entitled "An Act to Provide for the Manufacture, Sale, and Control of Alcoholic Beverages in North Carolina", Chapter 49, Public Laws 1937, and, to such extent, is repealed thereby.

At the time of the enactment of the 1937 act, Chapter 49, there were certain statutes in effect in this State which are pertinent to be considered in ascertaining what the legislature intended by the provisions of the act, from a State-wide standpoint. Section 3379 of Consolidated Statutes declared that it is unlawful for any person to have or keep in possession, for the purpose of sale, any spirituous liquor and that proof of the possession of more than one gallon of such liquors at any one time shall constitute prima facie evidence of the violation of this Section. Section 3411(b) of 3 Consolidated Statutes of 1924, Section 2 of the Turlington Act, Chapter 1, Public Laws 1923, declared that "no person shall...