State v. . Hardy

Clarkson, J. The exceptions and assignments of error by defendants as to the prior searches of defendants’ premises cannot be sustained. In S. v. Murphy, 84 N. C., 742 (743-4), it is said: “It is a fundamental principle of law that evidence of one offense cannot be given in evidence against a defendant to prove that he was guilty of another. We have been unable to find any exception to this well established rule; except in those cases where evidence of independent offenses have been admitted to explain or illustrate the facts upon which certain indictments are founded, as where, in the investigation of an offense, it becomes necessary to prove the quo animo, the intent, design, or guilty knowledge, etc. In such eases it has been held admissible to prove other offenses of like character,” etc. S. v. Jeffries, 117 N. C., 727; S. v. Simons, 178 N. C., 679; S. v. Grouse, 182 N. C., 835; S. v. Miller, 189 N. C., 695 (696); S. v. Dail, 191 N. C., 231 (232). In S. v. Boynton, 155 N. C., 456 (459-460), it is said: “The State, over defendant’s objection, was allowed to show by Watt Britt, J. B. Bryson, and others, that at some time prior to this alleged sale, and *86 within twelve months, defendant had whiskey in his possession in different quarters and in places in Asheville, N. C., and that at the business places under control and management of defendant,” etc. Solee, J., at p. 461, says: “It tended to show that defendant had and kept whiskey on hand, in prohibited territory, and was prepared and equipped to make the illegal sale charged in the bill of indictment. ... In 7 Encyclopedia of Evidence, p. 760, the author says: ‘Of course, the possession of liquors by the defendant, at the time of the offense charged, is always a circumstance admissible against him, and in general the circumstances under which liquors are kept, and even that they are kept at other places or in other rooms, may be shown.’ ” The defendant Katie Hardy’s testimony was to the effect: “We have been there a little over a year, I reckon.” S. v. Beam, 184 N. C., 740, cited by defendants, is inapplicable. In that case the prior crime had been committed 11 years before the one for which defendant was indicted. This was too remote. In the present case the searches were within about one year. N. C. Code of 1935 (Michie), sec. 3411 (j), is as follows: “The possession of liquor by any person not legally permitted under this article to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this article. But it shall not be unlawful to possess liquor in one’s private dwelling while the same is occupied and used by him as his dwelling only. Brovided, such liquor is for the personal consumption of the owner thereof, and his family residing in such dwelling, and of his bona fide guests when entertained by him therein.” On this aspect the court charged the jury as follows: “Under that warrant three verdicts are possible, guilty as charged, guilty of having whiskey in their possession for the purpose of sale, or guilty of unlawful possession, or not guilty, as you find the facts to be, except as to the defendant Katie Hardy. She admits that she had a certain quantity of whiskey in her possession. The State makes that unlawful, unless she had it in her private dwelling; when the place is occupied as a dwelling only, and according to the evidence in this case this building was not occupied solely as a private dwelling. Whether the Legislature was wise or unwise in passing that law is not for the court or the jury to say. We have no right to change it even though we do not agree with it. . . . Therefore, the court instructs you if you believe what she says about it and find from her testimony and the testimony of officers that she had any quantity of whiskey in her possession, then it would be your duty to return a verdict of guilty of unlawful possession as to the defendant Katie Hardy.” The defendants excepted and assigned error to the above portion of the charge. *87 The act clearly says: “But it shall uot he unlawful to possess in one’s private dwelling while the same is occupied and used by him as his dwelling only,” etc. All the evidence is to the effect that the filling station with bedroom and kitchen were connected and used together. The building “is not occupied and used by him as his dwelling only.” The statute was no doubt passed to cover the very situation as shown in this case. The court charged the jury as follows: “If you find from the evidence and beyond a reasonable doubt that Katie Hardy had in her possession on the premises occupied by Heber Hardy, and that he knew she had it there and permitted her to keep it there, then upon that finding it would be your duty to return a verdict of guilty of unlawful possession against him. Because any person who aids and abets another in an offense is equally guilty with the person who committed the act; so if you find from the evidence and beyond a reasonable doubt that he knew she had the liquor there and permitted her to keep it on his premises, a quantity of intoxicating liquor, then that would make him equally guilty.” The defendants excepted and assigned error. Fe do not think that this exception and assignment of error can he sustained. The rule applicable here is aptly stated in 33 O. J., p. 607, part section 237, “Intoxicating Liquors,” as follows: “Hnless it is otherwise as the result of statutory enactments, a husband is criminally responsible for illegal sales, or other infractions of the liquor laws, made or done by his wife in his presence, or by his command, or with his knowledge and consent, or when she acts as his servant or agent. And, where a wife keeps in the house of her husband or in the premises which are occupied and controlled by him intoxicating liquors for sale in violation of law, he is criminally liable, if he has knowledge of her intent, unless he uses reasonable means to prevent her from carrying out such intent . . . (p. 608). But the husband has been held liable where the wife, upon her sole responsibility and for her sole benefit, carried on the business of selling liquors illegally in a house occupied by them as a residence, with his knowledge but without his assent, or even though he had often remonstrated with her against making such sales,” etc. People v. Duchow (Ill.), 163 N. E., 352; Commonwealth v. Hyland (Mass.), 28 N. E., 1055; Commonwealth v. Walsh (Mass.), 42 N. E., 500; United States v. Bonham (S. C.), 31 Fed., 808. In Buchanan v. State (Ga.), 128 S. E., 686, it is said: “In this state the husband is recognized by law as the head of the family, and where intoxicating liquors are kept in the house occupied by himself and his family, he is guilty of aiding and abetting in the commission of a misdemeanor, if he knowingly allows such liquors to remain there, irrespective of who owns them or who put them there.” S. v. Myers, 190 N. C., 239 (243) ; S. v. Mull, 193 N. C., 668 (670). *88 These defendants were charged with the offense on 14 October, 1934, and convicted and judgment pronounced at April Term, 1935. On this aspect the contention of defendants cannot be sustained. S. v. Perkins, 141 N. C., 797 (809); S. v. Mull, 178 N. C., 748; S. v. Foster, 185 N. C., 674. Eor the reasons given, in the judgment of the court below there is No, err or. Devin, J., took no part in the consideration or decision of this case.