{
  "id": 8656081,
  "name": "STATE v. WILL SWINK",
  "name_abbreviation": "State v. Swink",
  "decision_date": "1909-12-15",
  "docket_number": "",
  "first_page": "726",
  "last_page": "729",
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    "name": "Supreme Court of North Carolina"
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  "analysis": {
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  "last_updated": "2023-07-14T21:30:26.349792+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. WILL SWINK."
    ],
    "opinions": [
      {
        "text": "Brown, J.\n1. The motion in arrest of judgment, because the bill fails to charge that the election provided for by chapter '71, Public Laws 1908, had been held and resulted in favor of prohibition, cannot be sustained.\nIn support of his position the learned counsel for the defendant relies on State v. Chambers, 93 N. C., 600. We think, however, there is a distinction. In that case the statute provided for an election to be held in the town of Morganton. It was a local election, confined to a single town in the State. The election of 1908 was a general election, covering the entire State, and the entire State was to be governed by its result. No authority can be found which holds that an election of this general character need be alleged in the bill. In the text of Cyc., Vol. 16, p. 901, it is said: \u201cSince judicial knowledge of official duties implies knowledge of the methods by which it is legally obtained, State courts judicially know the date of holding a general election or a special election provided for by a general law.\u201d And in Wigmore, sec. 2577, it is said: \u201cAll courts take notice, in one or another aspect, of facts concerning public elections.\u201d See, also, Cokes v. State, 55 Neb., 691; 76 N. W., 467. Moreover, the act of 1908 in express terms declares that \u201cthe proclamation by the Governor shall have the effect to determine the result of said election.\u201d All authorities hold that the courts take judicial notice of the proclamations of the executive. 16 Cyc., 904; Wigmore, sec. 2577.\n2. The position that the punishment is limited to a fine of $50 or imprisonment for thirty days, as provided in the charter of the city of Asheville, is untenable. The city charter has reference only to a sale of liquor without license. The defendant is not indicted for such a sale, but simply for the sale of liquor contrary to the State prohibition law. To limit the punishment for a violation of the law to a fine of $50 or imprisonment for thirty days would be in direct conflict with the provisions of the prohibition act, and the act declares that all laws in conflict with it are expressly repealed.\n3. It appears from the record that, during the progress of the trial, in the presence of the jury, and while Forest Phillips was on the stand as a witness for defendant, \u201cthe demeanor of the said Forest Phillips was bad and almost contemptuous, and it appearing to the court that some proceedings ought to be taken against him on account of his testimony, as well as his manner and obstinacy, the court, at the conclusion of the testimony, directed the sheriff to take charge of him, and also directed the solicitor to take such steps as were necessary.\u201d Defendant excepted.\nIn this we think the able and just judge who presided inadvertently committed an error, which fairly entitles the defendant to another trial.\nThe right of a nisi prius judge to order a witness or anyone else into immediate custody for a contempt committed in the presence of the court in session is unquestioned. But the committing of a witness, in either a criminal or a civil action, into immediate custody for perjury in the presence of the jury is almost universally held to be an invasion of the rights of the party offering the witness, and an intimation of opinion upon the part of the judge, prohibited by the statute. State v. Owenby, 146 N. C., 677; State v. Dick, 60 N. C., 440; 21 Enc. Pldg. & Prac., 998 et seq.; Burke v. State, 66 Ga., 157; Taylor v. State, 42 S. W., 384; Golden v. State, 75 Miss., 130; Brandon v. State, 75 Miss., 904; Kitner v. State, 45 Ind., 177; Davidson v. Herring, 48 N. Y. Sup., and 28 N. Y. Appel. Div., 402.\nThe right to punish summarily a contempt committed in the immediate presence of the court is necessary to maintain its dignity, but the necessity does not exist always for immediate commitment for perjury. .\nIf, in the judge\u2019s opinion, there is such necessity, injury to the party offering tbe witness can be avoided by sending tbe jurors out and keeping tbe action of tbe court from tbem.\nNew trial.",
        "type": "majority",
        "author": "Brown, J."
      }
    ],
    "attorneys": [
      "Attorney-General and George L. J ones for the State.",
      "W. P. Brown and J ones & Williams for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. WILL SWINK.\n(Filed 15 December, 1909.)\n1. Spirituous Liquors \u2014 Judgment\u2014Motion to Arrest \u2014 Genera! Law\u2014 Result of Election \u2014 Judicial Notice \u2014 Indictment.\nA motion in arrest of judgment after conviction by defendant of violating tbe State prohibition laws, ch. 71, Public Laws 1908, extra session, for that the bill failed to charge that the election provided for had been held and resulted in favor of prohibition, will not be sustained. The courts take cognizance of an election of this general character, and also of the proclamation of the Governor which, under the provisions of the act, had the effect of determining the result of the election.\n2. Spirituous Liquors \u2014 Prohibition, State Law \u2014 Conviction \u2014 Punishment \u2014 Charter Provisions.\nIn this case the defendant was convicted.of violating the State prohibition law, and the punishment is not confined to that prescribed by the charter of the city of Asheville.\n3. Power of Court \u2014 Witnesses\u2014Contempt\u2014Summary\u2014Punishment \u2014Presence of Jury \u2014 Intimation of Opinion.\nWhile the trial judge may summarily punish for contempt committed in the presence of the court, it is error to order the defendant\u2019s witness in the case into custody for perjury while on the witness-stand. This is an invasion of the rights of the. party who had offered the witnesses and an intimation of opinion prohibited by statute.\nAppeal by defendant from Ward, J., April Term, 1909, of BUNCOMBE.\nIndictment for selling spirituous liquors. The defendant was convicted, and appealed.\nTbe facts are stated in the opinion of the Court.\nAttorney-General and George L. J ones for the State.\nW. P. Brown and J ones & Williams for defendant."
  },
  "file_name": "0726-01",
  "first_page_order": 770,
  "last_page_order": 773
}