#### STATE v. CHARLIE BEAVERS.

(Filed 19 November, 1924.)

1. Appeal and Error — Objections and Exceptions — Contentions.

Tbe appellant must at tbe time call tbe attention of tbe trial judge to errors be is alleged to bave committed in stating tbe contentions of tbe parties to tbe jury, and an exception after verdict comes too late to be considered on appeal.

2. Evidence — Interest—Instructions—Criminal Law.

Tbe testimony of defendant if accepted as true by tbe jury, is given. • tbe same credibility as that of a disinterested witness, and a charge to that effect, after a proper instruction as to interest, is not error.

3. Constitutional Law — Criminal Law — Punishment—Intoxicating Liquor.

A sentence for two years for violating tbe Turlington Act will not be held as inhibited by our State Constitution as cruel and unusual, by reason of tbe fact that tbe judge after tbe trial and before sentence, made inquiry into tbe character of tbe defendant, tbe sentence imposed being in conformity with tbe provisions of tbe statute. Constitution, Art. I, sec. 14.

Appeal by defendant from Sinclair, J., and a jury, July Term, 1924, OÍ DURHAM.

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

J. W. Barbee and R. M. Gantt for defendant.

OlarksoN, J.

Tbe defendant was originally tried before tbe recorder in Durham for violation of tbe Turlington or Conformity Act for possessing and transporting liquor, was found guilty and sentenced to tbe roads and appealed to tbe Superior Court.

Tbe law in regard to tbe possession and transportation of liquor is fully considered in S. v. McAllister, 187 N. C., p. 400.

Tbe defendant’s first contention is that in tbe court below be did not bave a fair and impartial trial. That tbe court below, in violation of C. S., 564, in tbe charge to tbe jury, contrary to tbe statute, gave an opinion whether a fact was fully or sufficiently proven — that being tbe true office and province of tbe jury.

From a careful reading of tbe evidence in tbe record, there was conflicting evidence in several respects. Tbe court below told tbe jury: “The rule is that where there is- a direct conflict of evidence it is tbe duty of tbe jury to try to reconcile before saying anybody has intentionally testified to falsehood, if you can do it on tbe ground that somebody is reasonably mistaken, that tbe person’s memory is at fault. *596But if you are unable to reconcile the testimony which is conflicting, it; is your duty to say what evidence you will accept and what you will reject: It is entirely a matter for you to say what you will accept and what you will reject.” The court below then mentioned the. conflict in the evidence and spoke of them as contentions: “It is contended that in all these respects there is a direct conflict of evidence. It is your -duty to say how much weight you give to each part of this conflicting evidence. You must use your common sense and judgment and conscience. It is your problem and yours entirely. You musL (not) regard .anything I say as an expression of opinion about what the truth is, because it does not come into-my province, gentlemen of the jury; to express my opinions about the facts as that is entirely a mailer for the jury."

If calling attention to the discrepancies in the evidence is treated as giving a contention and were inaccurate, it was the duty of the defendant to bring it to the notice of the court at the time so that correction could be made. It is too late on appeal. S. v. Ashburn, 187 N. C., p. 723. We do not think on the whole this objection to the charge can be held as prejudicial.

The next contention is to the weight that should be given to the defendant’s testimony. The court below gave the following charge: “It is proper in all criminal cases that you should scrutinize the evidence of the defendant himself before you accept it as being true because the law says that a defendant, in all criminal cases, is tempted to testify so as to shield himself and it is your duty to take this principle of the law into consideration and use your common sense in giving the defendant’s testimony such weight as it is entitled to. If you find that he is testifying to the truth, it will be your duly to give it just as much weight as you would the testimony of a disinterested witness

We think this charge is fully sustained by our authorities, and the latter part of it is almost in the exact language in S. v. Fogleman, 164 N. C., p. 462.

In S. v. Barnhill, 186 N. C., p. 451, it was said: “The court below laid down the crucial rule, ‘If you find that the evidence is entitled to be believed, you have a right to accept it and give it the same weight you would that of any disinterested witness! The use of the word ‘duty’ would not be amiss, but the nonuse is not error.”

In his brief, the defendant attacks the judgment of the court below sentencing the defendant to two years on the public roads as cruel and unusual punishment, prohibited by the Constitution, Article I, sec. 14.

The evidence, from the record, showed that the general reputation of the defendant, Beavers, was that of handling whiskey. His own admission was that he did not know how often he had been in court. The week *597[before be was indicted for vagrancy, and be bad been in court for assault and battery and speeding.

On tbe question of punishment after conviction, it is tbe custom for tbe court below to bear evidence as to character. Tbis evidence is not a part of tbe record proper. Altbougb bis conviction was for three pints of liquor, it .is to be presumed that tbe court below took tbe record evidence into consideration, as to defendant’s general reputation as being a liquor seller, vagrant, etc. .All tbis is a matter of sound discretion in tbe court below. "We do not find any case, however, in our Supreme Court Reports from S. v. Driver, 78 N. C., 423, to S. v. Smith, 174 N. C., 804, which bolds that such punishment in a flagrant case of misdemeanor is prohibited by tbe Constitution.

¥e can find from tbe record no prejudicial or reversible error. Tbe jury returned a verdict having been charged by tbe court below: “Before you can convict him you will have to find from tbe evidence that be is guilty beyond a reasonable doubt.”

No error.