State v. Wilson, 655
| Decision Date | 20 May 1953 |
| Docket Number | No. 655,655 |
| Citation | 75 S.E.2d 924,237 N.C. 746 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. WILSON. |
Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.
T. S. Wall, Jr., Lexington, for defendant-appellant.
The first two assignments of error on this appeal may be considered together. Appellant contends that the original warrant is fatally defective in that it fails to charge any criminal offense, and hence may not be amended.
In this connection it is a well-established rule of practice in criminal prosecutions in this State that the Superior Court, on appeal thereto from an inferior court, has the discretionary authority to permit an amendment of the warrant on which the prosecution rests. State v. Wilson, 221 N.C. 365, 20 S.E.2d 273. But a warrant cannot be amended so as to charge a different offense. State v. Goff, 205 N.C. 545, 172 S.E. 407; State v. Clegg, 214 N.C. 675, 200 S.E. 371; State v. Brown, 225 N.C. 22, 33 S.E.2d 121; Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609, and numerous other cases.
On the other hand, the Attorney General for the State, while admitting that the warrant is 'inartfully drawn', contends that the original warrant charges at least three separate offenses: (1) The unlawful possession of nontax-paid liquor, (2) the unlawful possession for purpose of sale of nontax-paid liquor, and (3) the unlawful sale of alcoholic liquors; and that the amendments simply state the three charges 'in more workman-like language'.
Be that as it may, since the jury only found defendant guilty of the offense of unlawful possession of intoxicating liquors, as charged in the first count, that is, of nontax-paid liquor, consideration of these assignments may be confined to that count.
Now, turning to the original affidavit on which the warrant was issued, it seems clear that the phraseology of it, deleted of surplus words, State v. Levy, 220 N.C. 812, 18 S.E.2d 355, may be divided into two parts. The first part charges that defendant 'did unlawfully and willfully * * * possess * * * alcoholic liquors on the licensed premises of his own * *'. And the second part, reading 'the * * * possession of which alcoholic liquors was not authorized under the license which the licensee held authorizing the sale at retail of beverages as defined in section 18-64(a) and (b) for consumption on the premises where sold', distinguishes the liquors unlawfully possessed from those alcoholic beverages lawfully possessed under license, --thereby making certain the character of liquor of which defendant is charged with unlawful possession. And from this distinguishing character, it may be inferred that the alcoholic liquors unlawfully possessed were nontax-paid,--as the evidence offered upon trial tends to show.
Accordingly this Court holds that the charge is sufficiently definite to withstand the attack made upon it by defendant, and to admit...
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