State v. . Norris

ClaeksoN, J. The first exception and assignment of error of defendant is as follows: “For that the court refused to direct the jury to return a verdict of not guilty.” This exception and assignment of error cannot be sustained. O. S., 4643, is as follows: “When on the trial of any criminal action in the Superior Court, or in any criminal court, the State has produced its evidence and rested its case, the defendant may move to dismiss the action or for judgment of nonsuit. If the motion is allowed, judgment shall be entered accordingly; and such judgment shall have the force and effect of a verdict of 'not guilty’ as to such defendant. If the motion is not allowed, the defendant may except; and if the defendant introduces no evidence, the case shall be submitted to the jury as in other cases, and the defendant shall have the benefit of his exception on appeal to the Supreme Court. Nothing in this section shall prevent the defendant from introducing evidence after his motion for nonsuit has been overruled; and he may again move for judgment of nonsuit after all of the evidence in the case is concluded. If the motion is then refused, upon consideration of all the evidence, the defendant may except and, after the jury has rendered its verdict, he shall have the benefit of such latter exception on appeal to the Supreme Court. If defendant’s motion for judgment of nonsuit be granted, or be sustained on appeal to the Supreme Court, it shall in all cases have the force and effect of a verdict of 'not guilty.’ ” This section serves, and was intended to serve, the same purpose in criminal prosecutions as is accomplished by section 567, in civil actions. S. v. Fulcher, 184 N. C., 663, 769; S. v. Sigmon, 190 N. C., 687. *195 This motion of the defendant was made at the close of all the evidence. No motion of nonsuit or to dismiss under the above statute was made. ¥e think there was plenary evidence to be submitted to the jury. The second exception and assignment of error of defendant is as follows: “The defendant moved that the jury be instructed upon all the evidence that as a matter of law, the defendant should be discharged as having been placed in former jeopardy in the trial in the recorder’s court.” This exception and assignment of error cannot be sustained.. In S. v. Thornton, 35 N. C., 256 (251-258) : “A nolle prosequi in criminal proceedings, is nothing but a declaration, on the part of the prosecuting officer, that he will not at that time prosecute the suit further. Its effect is to put the defendant without day — that is, he is discharged and permitted to leave the court, without entering into a recognizance to appear at any other time — 1 Ch. Cr. L., 480; but it does not operate as an acquittal, for he may afterwards be again indicted for the same offense, or fresh process may be issued against him upon the same indictment, and he be tried upon it. 6 Mod., 261; 1 Sal., 21.” S. v. Smith, 129 N. C., 546; S. v. Faggart, 170 N. C., 737 (744); Wilkinson v. Wilkinson, 159 N. C., 265. The court below ruled out the parol evidence in regard to contradicting the record. The record judgment docket, in the county recorder’s court for Columbus County is as follows: “State v. W. C. and Jetty Norris, 11 October, 1932. N. P. (nolle prosequi.)” We do not think that the record can be impeached in this collateral way under the facts and circumstances of this case by parol evidence. Article 19, County Recorder’s Court, O. S., 1563, is as follows: “In any county in which a municipal recorder’s court may not be established under the provisions of this subchapter, or in which such court has in fact not been established in the county seat, the board of commissioners may, in their discretion, establish, in the manner provided by this article, a recorder’s court for the entire county, which shall be a court of record and shall be held at the county seat.” Recorder’s court for Columbus County is declared by statute, “shall be a court of record.” In Foster v. Woodfin, 65 N. C., 29 (30-31) : “The proceedings of a court not of record may be proved as other similar facts are. The proceedings of courts of record can be proved by their records only; this is by reason of the vagueness and uncertainty of parol proof as to such matters, and of the facility which the record affords of proving them with certainty. Public policy and convenience require the rule, and a necessary consequence from it is the absolute and undeniable presumption that the record speaks the truth. This presumption, however, *196 would be inconsistent with justice, if it were held to mean anything more than that the record may not be impeached collaterally.” In Hopkins v. Crisp, 166 N. C., 97 (99) : “It is well settled that where it appears upon the face of the record that the court had acquired jurisdiction of the parties and of the subject-matter of the action, the judgment therein is valid, however irregular it may be, and it must stand until set aside in a proper proceeding by competent authority. England v. Garner, 90 N. C., 197; Harrison v. Hargrove, 120 N. C., 106.” The third exception and assignment of error of defendant is as follows: “For that the court charged the jury that if it find beyond a reasonable doubt the facts as shown by the testimony of all the witnesses and the record evidence, it would be its duty to return a verdict of guilty.” We do not think this exception and assignment of error can be sustained. N. C. Code, 1931 (Michie), section 3411(b) (Public Laws, 1923, chap. 1, sec. 1), is as follows: “No person shall manufacture, sell, barter, transport, import, export, deliver, furnish, purchase, or possess any intoxicating liquor except as authorized in this article; and all the provisions of this article be liberally construed to the end that the use of intoxicating liquor as beverage may be prevented. Liquor for non-beverage purposes and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, furnished, and possessed, but only as provided by Title II of 'The Volstead Act,’ act of Congress enacted October twenty-eighth, one thousand nine hundred and nineteen, an act supplemental to the National Prohibition Act, 'H. R., 7294/ an act of Congress approved November twenty-third, one thousand nine hundred and twenty-one.” Latter part sec. 3411(d) (Public Laws, 1923, chap. 1, sec. 4), is as follows: “It shall be unlawful to have or possess any liquor or property designated for the manufacture of liquor intended for use in violating this article, or which has been so used, and no property rights shall exist in any such liquor or property.” The learned solicitor drew the bill of indictment against the defendant under the above law. The evidence was to the effect that certain parties with a search warrant went to defendant’s place. The search warrant was called to defendant’s attention, as they drove the car in the yard. (1) Defendant immediately went to feed some hogs. (2) His wife ran out of the house with three pints of liquor in her lap and some in a fruit jar and hid it near the house under some pea vines. (3) The boy took some liquor and ran across the branch, pouring out the liquor which he had in half-gallon jars, as he ran. (4) His daughter took some sacks and threw them over a 30-gallon drum. (5) Two cases of home brew were found *197 in tbe chicken coop, 3 dozen bottles in the case. They found several jars and jugs in the house. There was also found two 50-gallon barrels that had mash in them. They found the place where the rig had been, the coals still hot and trees broken over the still place to hide it, this was about 50 to 75 yards from the house. Two empty barrels in the barn. When the searchers appeared, the man went to feed his hogs, the wife ran out of the house with liquor and hid it, the boy took some and ran and spilled it as he ran. The daughter covered up the old 30-gallon drum. The scene was like a chicken hawk flying into a barn lot and the chickens scattering. We do not think the charge of the court below prejudicial. In S. v. Meyers, 190 N. C., 239 (243), citing many authorities : “If the liquor was within the power of the defendant, in such a sense that he could and did command its use, the possession was as complete within the meaning of the statute as if his possession had been actual. The possession may, within this statute, be either actual, or constructive.” In S. v. Estes, 185 N. C., 752 (754), speaking to the subject: “But where, as an inference of law the uncontradicted evidence, if accepted as true, establishes the defendant’s guilt it is permissible for the court to instruct the jury to return a verdict of guilty if they find the evidence to be true beyond a reasonable doubt. S. v. Vines, 93 N. C., 493; S. v. Winchester, 113 N. C., 642; S. v. Riley, ibid., 648; S. v. Woolard, 119 N. C., 779.” Where the intent is an ingredient of the crime, the rule is different. It is said in S. v. Rawls, 202 N. C., 397 (399) : “The fraudulent intent in this case was a question of fact for determination by the jury and not an inference of law for the decision of the court.” The jury rendered a verdict of guilty. The verdict was a general one. In S. v. Switzer, 187 N. C., 88 (96-97), speaking to the subject: “There was a general verdict of guilty, which, in law, was a verdict of guilty on each and every count. The general verdict of guilty upon two counts will be sustained if the evidence justifies either. S. v. Toole, 106 N. C., 736; S. v. Strange, 183 N. C., 775.” We see on the entire record no prejudicial or reversible error. The ease is a most flagrant violation of the law. The distillery was in the very shadow of the home. On the premises and in the home was liquor and the implements used in the traffic. This is a government founded on the consent of the governed, a democracy, the best so far devised by the human family. The will of the majority under constitutional limitations, the supreme law of the land. *198 The use of alcohol is recognized as a habit-forming drug. The General Assembly of North Carolina, Public Laws of 1929, chap. 96, passed an act to require in the public schools of the State instruction “of the effects of alcoholism and narcotism on the human system.” This teaching to have the effect to prevent the use of these habit-forming drugs, so destructive to the human family. The people of this State on 27 May, 1908, voted “against the manufacture and sale of intoxicating liquor” by a majority of 44,196. On 7 November, 1933, this State, out of a total vote of 415,536, voted 184,572 majority for dry delegates against the repeal of the Eighteenth Amendment. From these mandates of the people, it is the duty of all law officers to enforce and the people to obey this and we may say, all other laws on the statute books — our civilization depends on orderly government. The able and learned judge in the court below tried the case on the well settled principles of law applicable to the facts. In the record, we find No error.