#### STATE v. ARTHUR GRIER.

(Filed 22 November, 1922.)

Spirituous Liquor — Intoxicating Liquor — Indictment—Manufacturing— Aiding and Abetting — Issues—Verdict—Evidence—Nonsuit—Trials.

Where there is circumstantial evidence tending to show that the defendant had free access to the cellar in a house in the country where spirituous liquor was unlawfully manufactured, and was present at the time, and that he carried whiskey in cans from thence to a place of business he had in a nearby city, and had brought several persons out from the city, *724etc., it is sufficient for conviction under a count in the Indictment charging the unlawful manufacture of intoxicants; and where the jury have rendered a verdict of guilty upon an issue as to aiding and abetting therein, though no such offense was specifically charged, he would be equally guilty with those who had actually done the illicit manufacturing, añd a motion as of nonsuit was properly disallowed. O. S., 3409.

Appeal by defendant from Webb, J., at tbe July Term, 1922, of MECKLENBURG.

Attorney-General Harming and Assistant Attorney-General Nash for the State.

Stewart & McRae and William H. Bobbitt for defendant.

Walker, J.

Tbe defendant was convicted at tbe July Term, 1922, of Mecklenburg Superior Court, of aiding and abetting in tbe manufacture of spirituous liquors, and from tbe judgment upon sucb conviction appealed to tbis Court.

In tbe bill of indictment there were several counts, one of wbicb charged tbe defendant with manufacturing, distilling, and making-spirituous and intoxicating liquors. There was no count in tbe bill wbicb charged him with aiding and abetting in tbe manufacture of liquor.

Tbe defendant’s first exception and exception two were taken to tbe refusal of tbe judge to nonsuit at tbe end of tbe State’s evidence and again at tbe end of all tbe evidence.

Tbe State’s evidence tended to show that in March, 1922, deputy sheriffs Yesperman and Moser found a large steel still in tbe basement of Monroe Johnson’s bouse, wbicb bouse was directly opposite Steel Creek Presbyterian Church, about nine miles from Charlotte. They found there tbe necessary equipment for operating tbe still and five hundred gallons of beer. At the time they searched tbe bouse, Yiry Johnson, wife of Monroe Johnson, was the only person there. Tbe defendant ran a restaurant and kept an automobile for hire, and it was in consequence of information given by Yiry Johnson that tbe officers arrested tbe defendant Grier, in May, 1922. Tbe defendant was a nephew of Yiry. In tbe early part of tbe week, before tbe still was found, be brought cans to her bouse. On Friday prior to the time tbe still was found by tbe officers, be came out to tbe still in bis car and brought two other persons with him. He went into tbe bouse where she (Yiry) lay sick in bed. At that time be told her that be bad nothing to do with tbe still, but bad been hired to bring tbe other two persons out there. She could bear tbe voices of bystanders outside tbe window, and could smell tbe fumes coming up from tbe basement, where tbe still *725was. The next night (Saturday night) the defendant came out again, bringing only one person with him. Her husband, Monroe Johnson, was not at home at the time, he being then in the jail at Charlotte. The defendant drove up the roadway leading to the house, and in circling the'house to go back out his car stuck in a ditch near the rear of the house. She (Yiry) was sick in bed, but got up, went to the window, and saw them put some cans in the car. Tuesday after the still was found by the officers, she (Yiry) sent for Harvey Grier, defendant’s father, to see him about moving. Harvey was sick at the time, and defendant himself came, finding her lying in bed. She told him that the officers had found the still and beer, and he said, “Oh, Lordy,” and fell back on the bed where he was sitting.

It appears from this testimony that Monroe Johnson was not present at either of the times about which his wife testified, when the defendant was present. The defendant himself had free access to the still, and it was being operated while he was there. The witness could smell the fumes coming up from the basement where the still was. Again, when he came back, she saw the defendant put in his car the cans which he had brought out on his former trip. This is sufficient evidence to carry the case to the jury, as to the defendant’s guilt upon the charge of manufacturing liquor. The jury, however, convicted him of aiding and abetting in the manufacture of the liquor. The defendant certainly cannot complain .that the jury acquitted him of actively engaging in the alleged manufacture of liquor, but convicted him of aiding and abetting others in doing so. S. v. Smith, 183 N. C., at p. 729; notwithstanding that in law the fact that he was aiding and abetting the unlawful’manufacture of liquor rendered him equally guilty with those -who actually operated the still. S. v. Clark, 183 N. C., 733. The defendant here was not simply hauling people to this still that they might obtain liquor themselves from it, but there was reason to infer from the circumstances that he evidently, according to Yiry Johnson’s testimony, brought them there in order that the liquor might be manufactured and carried back to Charlotte. It is a fair inference from this testimony that the place of manufacture of this liquor was at Monroe Johnson’s house, but the place of its distribution or sale was at the restaurant of the defendant in Charlotte.

The defendant assigned several errors, based upon the exceptions duly taken by him, as follows :

The first assignment of error is based on the court’s refusal to nonsuit at the conclusion of the State’s evidence, and at the conclusion of the entire evidence.

The second assignment of error was taken to this instruction to the jury: “Or if they find that the still was not the property of the defend*726ant, but if tbey are satisfied beyond a reasonable doubt tbat tbe defendant was present, aiding and abetting some one else in tbe unlawful manufacture of tbe liquor, tbe defendant would be guilty, and if tbey so find beyond a reasonable doubt, it would be tbeir duty to convict tbe defendant.” Tbe question (as defendant’s counsel contend) raised in tbis assignment is whether tbe common-law rule tbat aiders and abettors in misdemeanors are guilty as principals applies to statutory misdemeanors.

Tbe third assignment of error is to tbe refusal of defendant’s motion in arrest of judgment, and to judgment -upon tbe verdict, namely, “Guilty of aiding and abetting in tbe manufacture of liquor.”

Tbe nonsuit was properly denied, as there was ample evidence of defendant’s guilt. If we should concede tbat it was not shown tbat be bad any connection witb tbe operation of tbe still, or in any way participated therein, we close our minds to manifest inference which tbe jury were at liberty to draw from tbe testimony. It did not require tbat tbe witness, Yiry Johnson, should have actually seen, or caught, tbe defendant in tbe act of operating tbe still. Tbey bad tbe right to form tbeir conclusion as to bis guilt from tbe facts and circumstances within her knowledge, and which came under her observation, or from what she saw and beard, at tbe time of tbe transaction, as related by her while on tbe witness stand. Tbe acts and conduct of tbe defendant, generally speaking and without entering into details, were those which usually accompany guilt. Tbey do not have tbe appearance of lawful or legitimate conduct. Tbe basement, tbe still, in active operation, and tbe cans which were brought there and taken away by tbe defendant, tbe fumes which -arose from below Yiry’s room, are clearly indicative of unlawful dealings by him, and conjointly witb others who came witb him and engaged in tbe illegal manufacture of tbe liquor, which was carried to Charlotte and placed in bis restaurant. Tbe purpose in doing all these things is so apparent tbat tbe jury could scarcely have rendered a contrary verdict. Tbe conclusion reached by them was well warranted.

Tbe second and third assignments of error seem to involve substantially tbe same question; tbat is, whether tbe defendant could be convicted of aiding and abetting in tbe commission of tbe crime under a bill charging only tbe principal offense of manufacturing liquor. In order to completely answer tbis contention it is necessary merely to refer to tbe statute, which is as follows: “It is unlawful for any person to distil, manufacture, or in any manner make, or for any person to aid, assist, or abet any such person in distilling, manufacturing, or in any manner making any spirituous or malt liquors or intoxicating bitters within tbe State of North Carolina; but tbis shall not be understood as *727prohibiting the manufacture of wines and cider in the manner and under the conditions which are now or may hereafter be provided by law. Any person or persons violating the provisions of this section shall, for the first conviction, be guilty of a misdemeanor, and, upon conviction or confession of guilt, punished in the discretion of the court,” etc. C. S., 3409.

It is hardly necessary that we should discuss the principle of the common law as to aiders and abettors in misdemeanors, and we simply state the general rule that aiders and abettors in misdemeanors are to be considered as principals. This Court has often held that one who aids and abets in a misdemeanor can be convicted of the principal offense charged in the bill, and we said in S. v. Horner, 174 N. C., 792, which was an indictment for an offense similar to the one described in this ease, that “It makes no difference whether defendant was a principal in the first degree or in the second degree as aider and abettor. The latter is but a lower grade of the principal offense, viz., the distilling and manufacturing of liquor. An aider and abetter is denominated -in the books as principal in the second degree,” and in S. v. Ogleston, 177 N. C., 542, Allen, J., charged the jury: “'Under this act, notwithstanding the charge is for the manufacture of spirituous liquors, you can convict either of the defendants for aiding and abetting the manufacturing of spirituous liquors as principals.” This charge was sustained. See, also, S. v. Killian, 178 N. C., 753.

There are many cases in which we have upheld convictions upon similar indictments for aiding-and abetting, when the evidence was of far less convincing force than the proof upon which this verdict rests, and where it showed no more participation in the principal crime than that of aiding and abetting.

The defendant, however, moved in arrest of judgment, because the indictment charged the manufacture of liquor without any count therein for aiding and abetting in the manufacture, yet the jury convicted him of aiding and abetting. The legal effect of this verdict, as we have shown, was to declare him guilty of manufacturing. S. v. Killian, supra; S. v. Ogleston, supra; S. v. Clark, 183 N. C., 733; S. v. Smith, 183 N. C., 729.

We find no error in the case that would warrant us in disturbing the verdict or the judgment. †

No error.