State v. . Graham

WinboeNe, J. Appellant presents for error the refusal of the trial ■court to sustain demurrer to the evidence, aptly made under G. S., 15-173, to which ruling exceptions were duly taken and preserved. A careful consideration of the evidence in the record and case on appeal, taken in the light most favorable to the State, leads to the conclusion as a matter of law (1) that the evidence is insufficient to support a verdict on either the first, second, fourth or fifth counts in the war-nant — the first and the fourth being virtually the same, and (2) that as "to each of them the demurrer should have been sustained, and judgment ■entered accordingly. The evidence as to each of these charges, first and fourth, unlawful possession of materials for the manufacture of whiskey, ■second, unlawful manufacture of whiskey, and fifth, aiding and abetting in the unlawful manufacture of whiskey, tends to show no more than an ■expressed intent on the part of defendant to set up a whiskey still in the *350 vicinity where the still in question was found. Such an intent alone is not sufficient for a conviction even of - an attempt to commit the offense charged. See S. v. Addor, 183 N. C., 687, 110 S. E., 650; S. v. Burgess, 186 N. C., 467, 119 S. E., 820. Moreover, though the evidence shows that three weeks thereafter, a still was set up in the approximate location to which the expressed intent related, there is no direct evidence to-connect defendant with it. And the circumstances fail to meet the legal requirements for a conviction. “When the State relies upon circumstantial evidence for a conviction, the circumstances and evidence must be such as to produce in the minds of the jurors a moral certainty of defendant’s guilt, and exclude any other reasonable hypothesis.” S. v. Stiwinter, 211 N. C., 278, 189 S. E., 868, and cases cited. See also S. v. Madden, 212 N. C., 56, 192 S. E., 859; S. v. Miller, 220 N. C., 660, 18 S. E. (2d), 143. But as to the third count charging defendant with the unlawful possession of intoxicating whiskey for the purpose of sale, the evidence that defendant, who resided four miles away from the still, came to the still and got one-half gallon of nontax-paid whiskey and left, is sufficient to make a prima facie case of unlawful possession of it for the purpose of sale. G-. S., 18-11, formerly C. S., 3411 (j). The case of S. v. Suddreth, 223 N. C., 610, 27 S. E. (2d), 623, is distinguishable in factual situation. Therefore, demurrer to the evidence as it relates to this count was properly overruled. There is a general verdict of guilty as charged. Such a verdict on a warrant or bill of indictment containing several counts charging offenses of the same grade and punishable alike, as in the instant case, is a verdict of guilty on each and every count. S. v. Toole, 106 N. C., 736, 11 S. E., 168; S. v. Sheppard, 142 N. C., 586, 55 S. E., 146; S. v. Poythress, 174 N. C., 809, 93 S. E., 919; S. v. Coleman, 178 N. C., 757, 101 S. E., 261; S. v. Switzer, 187 N. C., 88, 121 S. E., 43; S. v. Maslin, 195 N. C., 537, 145 S. E., 3. When the offenses are distinct, and there is a general verdict, as in the case in hand, the court can impose a sentence on each count. S. v. Toole, supra; S. v. Jarrett, 189 N. C., 516, 127 S. E., 590; S. v. Moschoures, 214 N. C., 321, 199 S. E., 92; S. v. Fields, 221 N. C., 182, 19 S. E. (2d), 486. If the verdict on either count be free from valid objection, and having evidence tending to support it, the conviction and sentence for that offense will be upheld. S. v. Miller, 29 N. C., 275; S. v. Baker, 63 N. C., 276; S. v. Toole, supra; S. v. Sheppard, supra; S. v. Avery, 159 N. C., 495, 74 S. E., 1016; S. v. Pace, 210 N. C., 255, 186 S. E., 366; S. v. Epps, 213 N. C., 709, 197 S. E., 580; S. v. Johnson, 220 N. C., 252, 17 S. E. (2d), 7; see also S. v. Gordon, ante, 304. *351 Applying these principles to the ease in hand, we have here a warrant containing five counts charging offenses of the same grade and punishable alike. The verdict is general and, hence, it is a verdict finding the defendant guilty on each and every count. As to four of the counts there is insufficient evidence to support a verdict of guilty. But as to one, the third, the evidence is sufficient to support a. conviction therefor. The court below could only sentence defendant upon the conviction on the third count. It appears, however, that the court in pronouncing judgment treated the counts severally, S. v. Jarrett, supra; S. v. Fields, supra, and that the sentence pronounced was upon the conviction on a count which is not supported by evidence, and the prayer for judgment was continued as to the only count supported by evidence. There may not be a new trial, S. v. Toole, supra, but the sentence imposed will be set aside and the case remanded for judgment upon the verdict on the third count, that is, upon the verdict convicting the defendant of unlawful possession of intoxicating liquor for the purpose of sale. S. v. Miller, supra. Error and remanded.