{ "id": 8658659, "name": "STATE v. RAS SMITH", "name_abbreviation": "State v. Smith", "decision_date": "1922-03-01", "docket_number": "", "first_page": "725", "last_page": "729", "citations": [ { "type": "official", "cite": "183 N.C. 725" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "178 N. C., 753", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274261 ], "opinion_index": 0, "case_paths": [ "/nc/178/0753-01" ] }, { "cite": "146 N. C., 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271330 ], "opinion_index": 0, "case_paths": [ "/nc/146/0361-01" ] } ], "analysis": { "cardinality": 522, "char_count": 11178, "ocr_confidence": 0.448, "pagerank": { "raw": 1.0235225705565215e-07, "percentile": 0.5460412942993974 }, "sha256": "da396a2d57e7c6b0576b927bc269e4e54b1b68dbe45288b5d435ceeca1c85ccc", "simhash": "1:a5e8f649cfb3254b", "word_count": 1946 }, "last_updated": "2023-07-14T16:03:22.299745+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. RAS SMITH." ], "opinions": [ { "text": "CLARK, C. J.\nThree officers, in consequence of information received, reached the place where a still was in operation about midnight. There were three men at the still; one appeared to be a negro and the others two white men. The officers could not recognize them at the time. The officers destroyed a lot of whiskey and beer and captured the still.\nThe defendant moved for a nonsuit. The evidence against the defendant was in substance as follows: The defendant lived about a half mile from the still. When the three men at the still discovered the officers they ran in the direction of Officer Groce. He testified that he saw two white men and one negro; two of whom ran towards him; he threw his flashlight on them, which caused the one in the rear to dodge and run back across a ditch and into a pond of water; he saw a track in the ditch where the man had run which appeared to have been made by tennis shoes. After destroying the liquor and capturing the still, the officers met the defendant in the road near his house about 1 a. m. The defendant had on tennis shoes and overalls. The shoes and the bottom of the overalls were wet, and upon arresting him the officers found on his person a quinine bottle of whiskey, which they called a \u201ctesting vial.\u201d 1 The motion to nonsuit was properly denied.\nFrom all the circumstances the jury were entitled to draw the inference that the defendant was guilty of assisting or aiding in the manufacture of the whiskey which was captured. Certainly the court was not authorized by a motion to nonsuit to adjudge that there was no evidence.\nThe defendant excepted also that the court ruled out testimony as to how much cotton and corn the defendant had made that year. This testimony was irrelevant, especially as the defendant admitted that he was a farmer.\nThese exceptions were not properly assigned, for they were not set out in the assignment of error as required by the uniform practice and decisions of this Court, but each assignment of error merely refers to the pages where the excluded evidence and the parts of the charge excepted to can be found, leaving us to. grope through the record to find them. This is contrary to the requirements of the rule which the Court has found necessary to prescribe and has often called attention to. Lee v. Baird, 146 N. C., 361, and cases cited in the 2 Anno. Ed. It is necessary that for the orderly and prompt dispatch of business the simple requirements of the Court shall be observed by parties who ask that the action of the court below shall be reviewed on appeal and counsel should observe these requirements.\nThe defendant also assigned error in the same irregular way, without setting forth the paragraph referred to, that the court erred in its charge. Not to be used as a matter of precedent, but we will, however, notice both the charge and the evidence thus insufficiently assigned as error: The court in reciting the testimony of the officers said that \u201cupon approach of the officers they ran, and one of them ran within ten steps or ten feet, I have forgotten which, but you gentlemen will remember testimony of the officer who testified.\u201d This is not objectionable as singling out, or giving any particular weight to any testimony.\nThe defendant also excepted because in reciting the testimony the court stated that \u201cwhen the defendant was arrested he had on white overalls and they were wet, and that he had on tennis shoes, and they were wet, and that the tennis shoes that he had on corresponded to the tracks made around the still.\u201d In this we cannot see how the court could have recited this testimony without stating it.\nThe defendant also excepted in the same irregular way, without referring to the charge except by citing us to the page, to the following charge: \u201cI instruct you, gentlemen of the jury, as the defendant, his wife and his brother, and his brother\u2019s wife have testified in the case, it is your duty to receive their testimony with a degree of caution and to closely and carefully scrutinize it, and scan it because they are interested in your verdict.\u201d This was excepted to, but the judge in the same breath, without pausing, proceeded to say, \u201cBut if after such scrutiny you are satisfied they are telling the truth, it will then be your duty to give their testimony as much credibility as you would give a disinterested witness. Credibility means worthiness of belief. You, gentlemen, are the judges of the weight and the credibility that you will give each and all of the witnesses; you may believe some of them and not believe others; you may believe a part of what they say and not believe other parts, and of all these things you are the judges.\u201d The judge further told the jury that they were judges of what was said by the witnesses and of their acts and their demeanor when they testified and how they conducted themselves on the stand, and to take into consideration and to compare all the evidence, including the evidence tending to show the good character of the defendant. He further fully instructed them as to the doctrine of reasonable doubt, and told the jury that if they were satisfied \u201cfrom the evidence beyond a reasonable doubt that the defendant engaged in the manufacture of liquor, it would be your duty to convict him of that charge. If you find from the evidence beyond a reasonable doubt that he aided and abetted another or others in the manufacture of intoxicating liquor, it will be your duty to convict him of that charge. You may convict him of one charge and acquit him of the other. You may acquit him of both charges or convict him of both as from the evidence you find the facts to be.\u201d\nTbe defendant als.o assigned as error in tbe same irregular way, with\u2022out quoting tbe words, tbe statement by tbe judge of tbe contentions of tbe State arising upon tbe evidence.\nTbe defendant also excepted for refusal to set aside tbe verdict because against tbe weight of tbe evidence, wbicb is not reviewable.\nTbe defendant also presented on tbe argument of tbe appeal an exception to tbe charge, though not made in tbe record or assigned as error, that tbe court did not charge tbe jury that by a local law tbe officers were entitled to a reward of $50 eaeb for an arrest in a case of this bind. It does not appear that 'tbe court did not make such charge, and tbe defendant- cannot be beard on assignment of error wbicb be did not make even if it bad appeared that tbe judge did not so charge. Tbe local act was not called to tbe attention of tbe judge, nor was be requested to charge on it, and tbe credibility of tbe officers was not impeached by -any cross-examination nor by any impeachment of their testimony nor, as in tbe case of tbe defendant\u2019s relatives, by reason of tbe fact of their being officers as tbe relatives were by their relationship.\nTbe defendant further excepted because tbe jury found tbe defendant not guilty of manufacturing whiskey, but guilty of aiding and abetting. This being a fact, as we must take tbe verdict to be, there is no reason why tbe jury should not so find.\nIt is true that all who participate in illicit distilling are principals in tbe manufacture of liquor (S. v. Killian, 178 N. C., 753), and whether tbe defendant was guilty of manufacturing or aiding and abetting in manufacture tbe jury could return a general verdict of guilty, but C. S., 3409, provides that any one who shall unlawfully \u201cmanufacture or aid, assist, or abet others\u201d in so doing shall be guilty of a misdemeanor. Tbe defendants certainly -cannot complain if tbe two offenses are charged in separate counts or that tbe jury acquitted of actively engaging in alleged manufacturing, but convicted of aiding and abetting others in doing so.\nUpon tbe whole case, giving tbe defendant every reasonable and possible exception, we find\nNo error.", "type": "majority", "author": "CLARK, C. J." } ], "attorneys": [ "Attorney-General Manning and Assistant Attorney-General Nash for the State.", "'JS. L. Gavin for defendant." ], "corrections": "", "head_matter": "STATE v. RAS SMITH.\n(Filed 1 March, 1922.)\n1. Intoxicating Liquor \u2014 Spirituous Liquor \u2014 Evidence\u2014Nonsuit\u2014Trials.\nEvidence upon the trial for the unlawful and wilful \u00bfmanufacture of whiskey and for aiding, assisting and abetting parties in the said manufacture, that when the officers, upon information received, raided the still there were several participants there who ran away, unidentified, but one of them dodged and ran back across a ditch and into a pond, making tracks in the mud, apparently those of tennis shoes, and that later in the night the defendant was met by the officers in a road near his home with his clothes wet and wearing wet tennis shoes, and having a \u201ctesting vial\u201d of the whiskey, etc., is sufficient to sustain a verdict of conviction. O. S., 3409.\n2. Same.\nThe rejection of evidence as to the quantity of cotton or corn the defendant, tried for the unlawful manufacture of liquor, etc., O. S., 3409, had raised on his farm that year, is of irrelevant testimony, and its exclusion not erroneous.\nS.Appeal and Error \u2014 Objections and Exceptions \u2014 Assignments of Error.\nExceptions to the trial must be properly set out in the assignments of error, to be considered on appeal, and it is insufficient if the assignment merely refers to the pages where the excluded evidence and the parts of the charge excepted t\u00f3 can be found.\n4. Appeal and Error \u2014 Instructions\u2014Contentions.\nThe recital of the testimony of certain witnesses in the judge\u2019s charge to the jury is not objectionable, alone, as singling out the testimony of these witnesses or attaching special weight to it.\n5. Evidence \u2014 Witnesses Interested in Result \u2014 Instructions.\nWhere the defendant\u2019s wife or other near relatives have testified in his behalf on a trial for manufacturing, etc., liquor, in violation of our statute, C. S., 3409, it is not error for the judge to charge the jury to receive their testimony with a degree of caution, to closely scrutinize and scan it, because of their interest in the verdict, when followed by the instruction to give it the same credibility as that of a disinterested witness if they were satisfied of its truth.\n6. Appeal and Error \u2014 Verdict\u2014Weight of Evidence \u2014 Motions\u2014Court\u2019s Discretion.\nThe refusal of the trial judge to set aside a verdict as being against the weight of the evidence is not reviewable on appeal. /\n7. Appeal and Error \u2014 Objections and Exceptions \u2014 Argument.\nExceptions presented only in the argument of counsel before the Supreme Court will not be considered.\n8. Intoxicating Jjiquor \u2014 Spirituous Liquor \u2014 Manufacture\u2014Aiding and Abetting \u2014 Verdict\u2014Judgment.\nThe appellant, convicted on his trial of aiding or abetting in the manufacture of whiskey on one count of the indictment, C. S., 3409, may not complain because he was tried on another count of the same bill for the unlawful manufacture of liquor and acquitted, there being sufficient evidence to sustain a conviction on each one.\nAppeal by 'defendant from Granmer, J., at November Term, 1921, of Lee.\nThe defendant was indicted under C. S., 3409 for the unlawful and wilful manufacture of whiskey and for aiding, assisting and abetting parties, whose names are unknown to the jurors, in the said manufacture. Verdict of guilty.\nAppeal by defendants.\nAttorney-General Manning and Assistant Attorney-General Nash for the State.\n'JS. L. Gavin for defendant." }, "file_name": "0725-01", "first_page_order": 785, "last_page_order": 789 }