State v. Avery

Annotate this Case

72 S.E.2d 670 (1952)

236 N.C. 276

STATE v. AVERY et al.

No. 220.

Supreme Court of North Carolina.

October 8, 1952.

*671 Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Robert L. Emanuel, Member of Staff, Raleigh, for the State.

C. J. Gates and M. E. Johnson, Durham, for defendant appellant Peacock.

BARNHILL, Justice.

The record contains eleven exceptive assignments of error. Only one of these, to wit, the exception to the refusal of the court to dismiss under G.S. § 15-173, is brought forward and discussed in defendant's brief. The others are deemed to be abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562; State v. Jones, 227 N.C. 94, 40 S.E.2d 700; State v. Muse, 230 N.C. 495, 53 S.E.2d 529.

The demurrer to the evidence and motion to dismiss under G.S. § 15-173 is untenable. The possession of any quantity of liquor upon which the Federal and State taxes have not been paid is, without exception, unlawful. G.S. § 18-48; State v. Barnhardt, 230 N.C. 223, 52 S.E.2d 904; State v. McNeill, 225 N.C. 560, 35 S.E.2d 629.

Nontax-paid liquor was found in defendant's home. A large number of people were gathered around his house. Some of them were intoxicated. A "dump body load" of one-half gallon jars was found just outside his house. His conduct toward the officers making the search tended to show guilty knowledge. He bears the reputation of being a dispenser of liquor. These and other circumstances disclosed by the testimony constitute more than a scintilla of evidence and made out a case for the jury.

That the house was rented by the feme defendant, and the liquor was owned by her were matters offered in defense. They were not to be considered on motion to dismiss.

*672 Furthermore, that the liquor belonged to the feme defendant, if such be the fact, does not necessarily exculpate the defendant. He is the head of his household. If his wife kept liquor in his home with his knowledge and consent, it was in his possession within the meaning of the law even though actual custody was in the wife, State v. Meyers, 190 N.C. 239, 129 S.E. 600; State v. Pierce, 192 N.C. 766, 136 S.E. 121, for it is axiomatic that one who aids, abets, or assists another in the commission of a misdemeanor is guilty as a principal. State v. Ward, 222 N.C. 316, 22 S.E.2d 922; State v. Jarrett, 189 N.C. 516, 127 S.E. 590; State v. Jenkins, 234 N.C. 112, 66 S.E.2d 819; State v. Parker, 234 N.C. 236, 66 S.E.2d 907.

The Turlington Act, now G.S. Ch. 18, Art. 1, except as modified or repealed by the Alcoholic Beverage Control Act, now G.S. Ch. 18, Art. 3, is still the law in this State. State v. Davis, 214 N.C. 787, 1 S.E.2d 104; State v. Wilson, 227 N.C. 43, 40 S.E.2d 449.

After the adoption of this statute, the State imposed no tax on alcoholic beverages and it was, with certain exceptions, unlawful to possess any quantity of intoxicating liquor. Under the ABC Act, liquor may be purchased from ABC stores and now it is not unlawful to possess liquor in the quantities and under the conditions prescribed by that Act. But, to make certain that this modification of the Turlington Act applies only to liquor upon which the taxes imposed by the Federal and State governments have been paid, the General Assembly wrote into the ABC Act the provision which is now G.S. § 18-48, making it unlawful to possess any quantity of liquor upon which such taxes have not been paid.

The two Acts constitute the body of our law relating to the purchase, possession, and sale of intoxicating liquor and must be construed in pari materia. When so construed, it becomes apparent that an allegation in a warrant or bill of indictment to the effect that the Federal and State taxes had not been paid upon the liquor seized or that it was illicit liquor is merely descriptive, State v. Merritt, 231 N.C. 59, 55 S.E.2d 804, and does not, as contended by defendant, limit the prosecution to any particular section of the liquor law or deprive the State of the benefit of the general provisions of the law as it now exists. Instead, it facilitates proof of the unlawfulness of the possession and renders it unnecessary to prove possession of any particular quantity.

The defendant moves in this Court that the judgment pronounced be arrested "in the event the Court should find that he was arrested, tried and convicted under G.S. Section 18-48, on the grounds that the said warrant was defective because it alleged two separate offenses in one count." The motion is without merit and is overruled. State v. Dilliard, 223 N.C. 446, 27 S.E.2d 85.

Construing the warrant with that degree of liberality required by the statute, G.S. § 15-153, it clearly appears that it charges two separate and distinct offenses: (1) unlawful possession, and (2) unlawful possession for the purpose of sale. Furthermore, objection to the warrant on account of duplicity, entered for the first time after verdict, comes too late. State v. Burnett, 142 N.C. 577, 55 S.E. 72; State v. Mundy, 182 N.C. 907, 110 S.E. 93; State v. Puckett, 211 N.C. 66, 189 S.E. 183.

We feel compelled to call attention to the state of the record in this cause. In almost every respect it fails to comply with the rules of this Court. Rule 19, Rules of Practice in the Supreme Court, 221 N.C. 553. The case on appeal and assignments of error precede the record proper. Neither the verdict of the jury nor the judgment of the court are made to appear except in a certificate of the clerk. Neither the warrant nor the verdict nor the judgmentindeed no part of the record proper is indexed. Though the record is relatively small, it has been necessary for us to search from page to page to find in the record essential information bearing on the questions defendant seeks to present. If counsel desire us to give consideration to their appeals, there must be at least a semblance *673 of compliance with our rules which, in this respect, are simple and require no great degree of astuteness to understand or to follow.

In the trial in the court below we find

No error.