State v. Wiley, 362

• Decision Date: 13 April 1955
• Docket Number: No. 362,362
• Citation: 86 S.E.2d 913,242 N.C. 114
• Parties: STATE, v. Stephen WILEY and J. T. Whaley.
• Court: North Carolina Supreme Court

Page 913

86 S.E.2d 913

242 N.C. 114

STATE, v. Stephen WILEY and J. T. Whaley.

No. 362

Supreme Court of North Carolina.

April 13, 1955

Carl V. Venters, Jacksonville, for defendants, appellants.

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

HIGGINS, Justice.

At the close of the State's evidence the record discloses, 'The defendants each moved to dismiss. Motion denied. The defendants each offer no evidence and renew their motion. Motion denied.' The agreed statement of the case on appeal signed by the solicitor and by counsel for the defendants recites: 'At the conclusion of the State's evidence, motion was made in behalf of each defendant for a directed verdict of not guilty, which motion was denied and exception thereto allowed.'

The motion for a directed verdict of not guilty challenges the sufficiency of the evidence to go to the jury, State v. Brackville, 106 N.C. 701, 11 S.E. 284. A number of other assignments of error appear in the record. However, they are not based on exceptions, therefore, cannot be allowed. State v. Biggerstaff, 226 N.C. 603, 39 S.E.2d 619.

The State offered two witnesses. Thomas J. Marshall, Sheriff of Onslow County, testified that in response to information he called Sheriff Miller of Duplin County and they, with their deputies, met about 3:00 a. m. on Sunday morning near the Onslow-Duplin County line. They found in the woods three barrels of mash, a steel drum lying on its side with a hole cut in it suitable for fitting a cap; these materials are 'used to make whisky out of.' They also found a doubling keg or cooling barrel. 'The equipment found was about two and one-half miles back in the woods and was not near nay home or residence.' The sheriffs, with their deputies, concealed themselves and waited.

Soon after daylight the defendants approached the site of the equipment. The defendant Wiley was carrying on his shoulder a five-gallon jug in a burlap bag. Sheriff Miller told the defendants to stay where they were. They complied with the sheriff's order. The mash had the odor of alcohol and in the opinion of the witness could be made into liquor. The defendants lived about two and one-half miles away. There was no cap for the still. There were no connecting pipes or worm. These are indispensable parts of the equipment if whisky is to be made. No cap was found.

Ralph Miller, Sheriff of Duplin County, testified substantially as did Sheriff Marshall. In addition, he testified the defendants came together and that Wiley said to Whaley, 'They are in here.' That when Whaley saw the witness, the witness said, 'Hold it right where you are at * * * we know who you are.' The defendants made no effort to get away. They had just looked in the barrels. Wiley set the jug down near the drum. The materials found were not sufficient to make liquor without a cap and worm. Wiley, on request, was permitted to drink some of the beer.

There is no evidence in the record as to the ownership of the land where the material was found. The defendants were not shown to have exercised any control or dominion over, or possession of the material. The material at the site was incomplete. Liquor could not be made with the material at...