State v. Cobb

108 S.E.2d 237 (1959)

250 N.C. 234

STATE v. Alvie M. COBB.

No. 506.

Supreme Court of North Carolina.

April 29, 1959.

Hammond & Walker and Coltrane & Gavin, Asheboro, for defendant-appellant.

Malcolm B. Seawell, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.

PER CURIAM.

It appears from the Judge's charge to the jury that defendant's wife was charged in a separate bill of indictment with a violation of G.S. § 18-48it does not appear as to whether or not she was charged with a violation of G.S. § 18-50 and that the two bills of indictment were consolidated for trial. It clearly appears from the Judge's charge that he submitted only the first count in defendant's bill of indictment to the jury. This had the effect *238 of a directed verdict of not guilty on the second count in the defendant's bill of indictment. State v. Love, 236 N.C. 344, 72 S.E.2d 737. The record does not show the jury's verdict as to defendant's wife.

Before pleading to the bill of indictment, the defendant moved to suppress the evidence on the ground that it was illegally procured. The court denied the motion, and defendant excepted. Defendant then pleaded not guilty. The search warrant was not introduced in evidence, nor was any evidence introduced that it was lost. There was no evidence as to its contents. There was no evidence that it was duly issued. There was no evidence as to who issued it. The Court permitted the State, over the defendant's objection and exception, to introduce in evidence a jar containing whisky, which whisky was found during the search of defendant's home. Defendant assigns this as error. The Attorney General, with his usual frankness, concedes error.

The verdict and judgment are vacated, and a new trial on the first count in the bill of indictment is awarded, on authority of State v. McMilliam, 243 N.C. 771, 92 S.E.2d 202.

New trial.