State v. . Denton

HOKE AND WALKER, JJ., dissenting. The record presents only two assignments of error: 1. After the jury had retired, they returned to the court-room for further instructions. In the absence of the defendant's counsel, and without notice to him, the court delivered instructions to the jury upon a phase of the case concerning which they requested instruction. It is admitted on the argument that this occurred during the (643) regular session of the court, and not during a recess. Counsel must take notice of the regular sittings of the Superior Courts, the principal nisi prius courts of the State, and the judge presiding is not required to send for an attorney when his case is under consideration. Rule 27, in the Rules of Practice in the Superior Courts, revised and adopted by the Justices of the Supreme Court by virtue of Revisal of 1905, sec. 1541; 140 N.C. 685. It may be the duty of the presiding judge "for some unusual reason," as stated in that rule, to send for counsel even during a regular session of the court, but from force of circumstances that is a matter which must be left to his sound discretion. This point was considered by the Supreme Court of Iowa in S. v. Hale,91 Ia., 370, where it is said: "That counsel was not advised of the court's action before the jury was brought in appears to have been his own fault. He could not be found. Counsel who are interested in a cause in which a jury is deliberating know that they may be wanted at any moment, and must either be in attendance at court or advise the court or proper officers where they can be found. Judicial proceedings can not stop because of a failure of counsel to do their duty in this respect." Where additional instructions are given to a jury during a recess of the court, we think counsel are entitled to be present, or at least one of them on each side, and that they should be notified, if to be found. 2. His Honor charged the jury that if they should be satisfied from the evidence in the case that the State's witness, Hodge, owned the whiskey and brought the same in a basket to defendant's home for the purpose of selling it there, and that Hodge, on the night in question, sold a pint of this whiskey to the witness Dempsey, in the presence of defendant and with his knowledge, then the defendant would be guilty of aiding and abetting the sale by Hodge to Dempsey, and that, since in misdemeanors all aiders and abettors are principals, the defendant would be guilty, as a principal, of selling whiskey to Dempsey. State's witnesses, Dempsey and Hodge, testified that on the (644) *Page 508 night of 19 March, 1910, they went to defendant's home and bought from him a pint of whiskey each; that defendant was lying on a lounge and was the only person in the room; that twelve or eighteen half-pint bottles of whiskey were on the table; and each laid down 50 cents on the table and took a pint of whiskey; that at same time defendant gave each a drink of "peach and honey." The testimony of defendant's witnesses is to the effect that State witness Hodge brought this whiskey to defendant's house and placed it on the table; that on the night Dempsey bought the whiskey Hodge picked up the 50 cents from the table; that defendant was present in the room lying on the lounge, but did not get the money paid for the whiskey. All of the defendant's evidence tends to prove that Hodge was using defendant's home as a place where he could sell his whiskey with less danger than at his store, and that Hodge sold it there in defendant's presence on the occasion in question and received the money for it. The instruction excepted to was given in response to a request from the jury for further instructions upon that phase of the evidence, that "the whiskey had been brought to defendant's home by Hodge and allowed by defendant to be sold by Hodge in the house and in the presence of defendant," and the instruction presupposes such finding of facts. In view of the evidence to support it, we think the instruction entirely correct. It is well settled that if one aids and abets another in the commission of a misdemeanor, he is guilty as principal, and this elementary principle of law has been applied to one who aids another in the illicit sale of liquor. In the text of Cyc., vol. 23, p. 209, we find it laid down that "Any person who aids and abets or assists in or procures an unlawful sale of intoxicating liquors may be indicted as a principal in the transaction, such offense being a misdemeanor." (645) Assuming the facts to be as stated in the instruction, how could the defendant more effectually aid and abet Hodge in his criminal traffic than by permitting him to sell his whiskey in the privacy of defendant's own home, where there was much less probability of detection than at Hodge's store? Suppose a band of counterfeiters had been found in defendant's house manufacturing their spurious money in defendant's presence, could it be said that he was not thereby aiding and abetting them? It is not even suggested that Hodge had taken possession of defendant's house vi et armis and that defendant was under duress, or that he was noncompos mentis. It is not an inference to be drawn by the jury from the circumstances in evidence, but the law itself infers that, in the absence of any evidence of duress or insanity, what was done in defendant's home and in his presence was done by his consent and contrivance. *Page 509 To the mind of the writer, the proposition embodied in the instruction is so evidently correct that it is difficult to discuss, and needs no citation of authority to support it. Nevertheless, the Supreme Court of Massachusetts has decided practically the question involved in this case. In Com. v. Hayes, 167 Mass. 176, it is held that one may be convicted for the unlawful sale of or keeping for sale of intoxicating liquors if the jury find that he kept or maintained the premises, and that any part thereof was, with defendant's consent, used for the illegal sale or keeping of spirituous liquors. If the defendant knowingly permitted Hodge to use his home for the illicit sale of whiskey on one occasion, he is an aider and abettor on that occasion, and it is as much a violation of law as if he habitually permitted it. No error.