{
  "id": 8620176,
  "name": "STATE v. EXUM MOORE",
  "name_abbreviation": "State v. Moore",
  "decision_date": "1926-09-29",
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  "first_page": "209",
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  "last_updated": "2023-07-14T21:52:38.190415+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. EXUM MOORE."
    ],
    "opinions": [
      {
        "text": "AdaMs, J.\nTbe State introduced two witnesses, A. H. Heslewood and A. Moye, each of whom testified that be bad bought whiskey from tbe defendant; tbe defendant introduced, one witness whose testimony contradicted that of Heslewood but did not contradict that of Moye. At tbe conclusion of tbe evidence tbe judge told tbe defendant\u2019s counsel in tbe presence of tbe jury that be would instruct tbe jury to convict tbe defendant if they found beyond a reasonable, doubt that Moye\u2019s testimony was true. This remark was repeated in tbe presence of tbe jury and in each instance tbe defendant duly excepted. This was not an expression of opinion as to tbe credibility of the witness or as to the defendant\u2019s guilt, but the announcement of an intended instruction which was subsequently given as follows: \u201cThe witness, A. Moye, testified that he bought a pint of whiskey from the defendant and paid him $2.00 for it. This evidence is not contradicted. The court instructs you that if you believe the evidence of the witness, Moye, beyond a reasonable doubt, you should find the defendant guilty.\u201d The defendant suggests that this instruction is erroneous; but there was no other evidence of this transaction and the evidence if believed was susceptible of only one construction, that is, that the defendant made the sale; and under such circumstances similar instructions have repeatedly been sustained. S. v. Vines, 93 N. C., 493; S. v. Winchester, 113 N. C., 642; S. v. Riley, ibid., 648; S. v. Woolard, 119 N. C., 779; S. v. Hill, 141 N. C., 769; S. v. Estes, 185 N. C., 752; S. v. Murphrey, 186 N. C., 113. The principle does not apply where the evidence, if true, is susceptible of more than one deduction. Fertilizer Works v. Cox, 187 N. C., 654. We are referred by the defendant to S. v. Hardy, 189 N. C., 799, in which upon assignments of error a new trial was awarded. There the instruction, \u201cIf you believe the facts as testified you will return a verdict of guilty,\u201d was disapproved; but the evidence to which the instruction referred was apparently regarded as open to more than one construction. It is worthy of note that the State\u2019s witness in that case did not say directly, but only inferentially, that the man he had met in the road was the defendant, and his subsequent testimony was not necessarily conclusive on that question. In any event, Hardy\u2019s case c\u00e1nnot reasonably be interpreted as conflicting with the long line of decisions which have upheld the principle now under discussion.\nThe judge\u2019s remark that Moye\u2019s testimony was not contradicted did not constitute reversible error. He simply directed the jury\u2019s attention to the conflict between the testimony of Heslewood and that of the defendant\u2019s only witness and' to the want of such inconsistency between the defendant\u2019s witness and Moye. The plea put in issue the question of the defendant\u2019s guilt and the credibility of the State\u2019s evidence; but it could not \u201ccontradict\u201d evidence which had not been introduced when the plea was entered. S. v. Murphrey, supra; S. v. Hardy, supra, p. 804.\nWe find nothing in the record which indicates the expression or intimation of an opinion by the presiding judge in violation of Consolidated Statutes, 564, or disregard of the rule which forbids the selection or \u201csingling out\u201d of one witness among many, where the evidence is conflicting, and making his credibility a pivotal or controlling circumstance. S. v. Rogers, 93 N. C., 523; Long v. Hall, 97 N. C., 286.\nWe find\nNo error.",
        "type": "majority",
        "author": "AdaMs, J."
      }
    ],
    "attorneys": [
      "Attorney-General Brummitt and Assistant Attorney-General 'Nash for the State.",
      "Travis & Travis and Allen G. Zollicoffer for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. EXUM MOORE.\n(Filed 29 September, 1926.)\nInstructions \u2014 Evidence \u2014 Directing Verdict \u2014 Statutes \u2014 Expression of Opinion \u2014 Appeal and Error.\nWhere the defendant is on trial for the unlawful sale of intoxicating liquor, and the only testimony is given by two witnesses as having bought it from him at different times; and the defendant\u2019s evidence is in contradiction' of one of them, a charge by the court for the jury to return a verdict of guilty if they believed or found as true the testimony of the other witness (capable of only one meaning), is not an expression of the court\u2019s opinion upon the weight and credibility of the evidence, inhibited by C. S., 564.\nAppeal by defendant from Granmer, J., at June Term, 1926, of tbe Superior Court of.Halifax County. No error.\nTbe defendant was charged with violation of tbe prohibition law. At tbe close of tbe State\u2019s evidence tbe solicitor said be would insist on a verdict only for tbe unlawful sale. In behalf of tbe State A. H. Hesle-wood testified that be bought a pint of liquor from tbe defendant on Saturday, 17 April, 1926, and A. Moye testified that be bought liquor from tbe defendant at another time. Tbe alleged sales were not related to each other in any way.\nTbe defendant did not testify but introduced as bis only witness bis father, who said that on 17 April, 1926, tbe defendant was at home all day and remained most of tbe time in bed. This was in contradiction of Heslewood\u2019s testimony; tbe witness did not contradict what Moye said.\nTbe defendant was convicted and from tbe judgment pronounced \u2018 be appealed to tbe Supreme Court, assigning error.\nAttorney-General Brummitt and Assistant Attorney-General 'Nash for the State.\nTravis & Travis and Allen G. Zollicoffer for defendant."
  },
  "file_name": "0209-01",
  "first_page_order": 283,
  "last_page_order": 284
}