{
  "id": 2673749,
  "name": "STATE OF NORTH CAROLINA v. HUGH WARNER HARRELL",
  "name_abbreviation": "State v. Harrell",
  "decision_date": "1981-02-03",
  "docket_number": "No. 806SC685",
  "first_page": "531",
  "last_page": "536",
  "citations": [
    {
      "type": "official",
      "cite": "50 N.C. App. 531"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "180 S.E.2d 322",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "opinion_index": 0
    },
    {
      "cite": "11 N.C. App. 145",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8553255
      ],
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/11/0145-01"
      ]
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  "last_updated": "2023-07-14T22:39:05.008611+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Clark and Whichard concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. HUGH WARNER HARRELL"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nDefendant contends, based upon his first and second assignments of error, that the court erred in denying his motions to dismiss the charge against defendant. The State offered evidence at trial tending to show the following: On 26 May 1979, Calvin Pearce, a law enforcement officer with the Hertford County Alcoholic Beverage Control Board, obtained a search warrant for the purpose of searching the premises at 516 North Maple Street in Ahoskie, North Carolina for \u201cillicit spirits and intoxicating liquor.\u201d At approximately 8:45 p.m. Pearce, along with several other officers, took the warrant to the specified address, and when they knocked on the back kitchen door, a \u201clady\u2019s voice said, \u2018Come in\u2019.\u201d Upon entering, the officers served the warrant on defendant and one Ver lene Riddick. Defendant was standing in the middle of the room, and Riddick was sitting at the kitchen table along with two men. A \u201cbig bottle,\u201d \u201calmost half gallon,\u201d of Inver House Scotch was sitting on the table in front of Riddick, and another bottle of Inver House Scotch and a bottle of Smirnoff Vodka were also sitting on the table, along with cups in front of each per sou and several other empty cups. Each of the cups had \u201can odor of alcohol.\u201d Two or three \u201ctubes of small cups\u201d approximately three ounces in size were also on the table. Some of the officers went into an adjacent bedroom and found \u201cabout four liters of Inver House Scotch, Canada Dry Bourbon, and Smirnoff Vodka.\u201d Defendant and Riddick were placed under arrest, and Pearce asked defendant \u201cwhose room it was that the liquor was in and he stated it was his bedroom,...\u201d Defendant further stated that \u201ceverything belonged to him with the exception of the bottle sitting in front of Verlene Riddick on the table.\u201d\nThe officers also found fourteen cans of beer, about one liter of wine, and \u201capproximately an eighth of a liter\u201d of Gilbey\u2019s Gin in the refrigerator, but no \u201cPepsi-Cola, Coca-Cola, Ginger Ale or any mixers\u201d were found there. Upon looking into a \u201c20 gallon, galvanized-type\u201d garbage can beside the back door, Pearce discovered \u201capproximately thirty-five or forty or maybe fifty\u201d empty beer cans, a large number of three ounce cups, and \u201cas many as three or four\u201d empty half-gallon bottles of Inver House Scotch. While the officers were at the house, four or five people came to the back door, and \u201c[t]hey would knock on the door, and come in and then ask if they could leave.\u201d\nThe liquor found by the officers was determined to be tax-paid liquor purchased from nearby Alcoholic Beverage Control stores, and the liquor taken from the bedroom \u201cdid not have the seals broken.\u201d The liquor was also determined to be 80 proof, or forty percent (40%) alcohol, and the total liquor found was approximately six and five-eighths (6 %) liters, of which four and three-fourths (4 %) liters were in defendant\u2019s possession.\nG.S. \u00a7 18A-7 in pertinent part provides:\n(a) It is unlawful for any person, firm, association or corporation, by whatever name called, to have or keep in possession for the purpose of sale, except as authorized by law, any intoxicating liquors; and proof of any one of the following facts shall constitute prima facie evidence of a violation of this section:\n(2) The possession of more than four liters of spirituous liquors at any one time, whether in one or more places;...\nWe think it is clear that the evidence is sufficient to require submission of the case to the jury, and to support the verdict. Defendant had in his constructive possession more than four liters of liquor with an alcoholic content of greater than twenty-one percent (21%); thus, he was in constructive possession of more than four liters of \u201cspirituous liquors.\u201d G.S. \u00a7 18A-2(12). Thus, the evidence establishes a prima facie case of a violation of the statute. This assignment of error is without merit.\nDefendant\u2019s third assignment of error relates to the court\u2019s permitting the admission of testimony as to the presence of beer and wine in defendant\u2019s home, and the court\u2019s inclusion of this evidence in its instructions to the jury. Defendant argues that testimony concerning beer and wine found at defendant\u2019s home was irrelevant to proving the possession of \u201ctax paid whiskey\u201d for the purpose of sale, and that such testimony represented a \u201cfatal variance between pleading and proof.\u201d We disagree. Defendant was charged with a violation of G.S. \u00a7 18A-7, possession of intoxicating liquor for the purpose of sale. Obviously, defendant\u2019s possession of any type of intoxicating liquor, whether beer, wine, or spirituous liquor, would be relevant to a prosecution under this statute. The fact that the State\u2019s case for showing a violation of the statute was proving possession of more than four liters of spirituous liquors does not preclude the State from introducing evidence that other, non-spirituous liquors were found in defendant\u2019s possession, as such evidence further tends to show that defendant\u2019s possession of spirituous liquors was for the purpose of sale. This assignment of error is without merit.\nBy his seventh and eighth assignments of error, defendant contends the trial judge erred in denying his motions to set aside the verdict. Defendant argues that there is a \u201cfatal variance\u201d between the charge in the citation and the verdict, and that the verdict is \u201cdefective as a matter of law.\u201d Defendant was charged in a citation with the \u201cpossession of tax-paid whiskey for the purpose of sale-G.S. 18A-7\u2014that whiskey being intoxicating liquor.\u201d The written verdict submitted to the jury is as follows:\nWe the jury by unanimous verdict find the defendant Hugh Warner Harrell\nGuilty_\nNot Guilty_\nThis 18th day of February, 1980.\ns/-\nJury Foreman\nThe jury placed a check mark in the blank beside \u201cGuilty\u201d and the foreman signed the form. When the verdict was accepted by the court, the following occurred:\nTHE COURT: Ladies and gentlemen of the jury, by unanimous verdict you find the defendant, Hugh Warner Harrell, guilty of the offense of possession of intoxicating liquor for the purpse of sale. This is your verdict and so say you all?\nDefendant argues that since the jury found defendant guilty of \u201cpossession of intoxicating liquor for the purpose of sale,\u201d it is at fatal variance with the citation which charged defendant with \u201cpossession of tax-paid whiskey for the purpose of sale.\u201d Obviously, the jury found defendant guilty as charged, as the reference to \u201ctax-paid whiskey\u201d in the citation is merely surplusage. Defendant also argues that the verdict is defective as a matter of law because it did not specify whether defendant was guilty of possession of whiskey for the purpose of sale, or of spirituous liquor for the purpose of sale. As pointed out above, we think the verdict is clear and finds the defendant guilty as charged, and the verdict conforms to the charge in the citation. These assignments of error have no merit.\nFinally, defendant\u2019s sixth assignment of error relates to the court\u2019s instructions to the jury. Where error is assigned to the giving or omission of instructions to the jury in a criminal action, the record on appeal shall contain a transcript of the entire charge given. Rule 9(b)(3)(vi), N. C. Rules of Appellate Procedure. A reviewing court will not consider alleged errors in selected portions of a charge when the entire charge is not before it. State v. Young, 11 N.C. App. 145, 180 S.E.2d 322 (1971). In the present case, the entire charge to the jury is not set out in the record, since only those portions of the instructions pertinent to the exceptions raised have been made part of the record. We will therefore not consider any alleged error in the instructions, and this assignment of error is without merit.\nWe hold that defendant had a fair trial free from prejudicial error.\nNo error.\nJudges Clark and Whichard concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney William R. Shenton, for the State.",
      "Carter W. Jones, by Donnie R. Taylor, for the defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. HUGH WARNER HARRELL\nNo. 806SC685\n(Filed 3 February 1981)\n1. Intoxicating Liquor \u00a7 15\u2014 possession of intoxicating liquor for purpose of sale \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficientfor the jury in a prosecution of defendant for illegal possession of intoxicating liquor for the purpose of sale in violation of G.S. 18A-7 where it tended to show that defendant had in his constructive possession more than four liters of liquor with an alcoholic content of greater than 21%. G.S. 18A-7(a)(2); G.S. 18A-2(12).\n2. Intoxicating Liquor \u00a7 12\u2014 possession of intoxicating liquor for purpose of sale \u2014 evidence of possession of beer and wine\nIn a prosecution for illegal possession of intoxicating liquor for the purpose of sale, testimony concerning beer and wine found at defendant\u2019s home was competent as tending to show that defendant\u2019s possession of the intoxicating liquor was for the purpose of sale.\n3. Intoxicating Liquor \u00a7 20\u2014 possession of intoxicating liquor for purpose of sale \u2014 no fatal variance between citation and verdict\nThere was no fatal variance between a citation charging defendant with \u201cpossession of tax-paid whiskey for the purpose of sale -- G.S. 18A-7 - that whiskey being intoxicating liquor\u201d and a verdict finding defendant guilty of \u201cpossession of intoxicating liquor for the purpose of sale,\u201d since the reference in the citation to \u201ctax-paid whiskey\u201d was merely surplusage, and it is obvious that the jury found defendant guilty as charged.\n4. Criminal Law \u00a7 163\u2014 alleged errors in charge \u2014 necessity for placing entire charge in record\nA reviewing court will not consider alleged errors in selected portions of a charge when the entire charge is not before it.\nAPPEAL by defendant from Tillery, Judge. Judgment entered during 18 February 1980 session of Superior Court, HERTFORD County. Heard in the Court of Appeals 2 December 1980.\nDefendant was charged with possession of tax-paid whiskey, \u201cthat whiskey being intoxicating liquor,\u201d for the purpose of sale in violation of G.S. \u00a7 18A-7. From a jury verdict of guilty and the imposition of a prison sentence of twelve months, defendant appealed.\nAttorney General Edmisten, by Associate Attorney William R. Shenton, for the State.\nCarter W. Jones, by Donnie R. Taylor, for the defendant appellant."
  },
  "file_name": "0531-01",
  "first_page_order": 557,
  "last_page_order": 562
}