{ "id": 8596832, "name": "STATE v. W. H. HICKEY", "name_abbreviation": "State v. Hickey", "decision_date": "1929-12-04", "docket_number": "", "first_page": "45", "last_page": "51", "citations": [ { "type": "official", "cite": "198 N.C. 45" } ], "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., 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274309 ], "opinion_index": 0, "case_paths": [ "/nc/178/0762-01" ] }, { "cite": "17 Ga. App., 118", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1295280, 1295309 ], "opinion_index": 0, "case_paths": [ "/ga-app/17/0118-02", "/ga-app/17/0118-01" ] }, { "cite": "86 S. E., 283", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "150 Tenn., 416", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8534935 ], "opinion_index": 0, "case_paths": [ "/tenn/150/0416-01" ] }, { "cite": "24 Ga. App., 811", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1397592 ], "opinion_index": 0, "case_paths": [ "/ga-app/24/0811-01" ] }, { "cite": "102 S. E., 367", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "30 Ga. App., 526", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1415897 ], "opinion_index": 0, "case_paths": [ "/ga-app/30/0526-01" ] }, { "cite": "118 S. E., 575", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "120 A 88", "category": "reporters:state_regional", "reporter": "A.", "pin_cites": [ { "page": "89" } ], "opinion_index": 0 }, { "cite": "195 N. C., 747", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631847 ], "opinion_index": 0, "case_paths": [ "/nc/195/0747-01" ] }, { "cite": "183 N. C., 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658376 ], "opinion_index": 0, "case_paths": [ "/nc/183/0684-01" ] }, { "cite": "172 N. C., 905", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11256242 ], "opinion_index": 0, "case_paths": [ "/nc/172/0905-01" ] }, { "cite": "195 N. C., 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630563 ], "opinion_index": 0, "case_paths": [ "/nc/195/0523-01" ] }, { "cite": "194 N. C., 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612665 ], "opinion_index": 0, "case_paths": [ "/nc/194/0526-01" ] }, { "cite": "193 N. C., 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217872 ], "opinion_index": 0, "case_paths": [ "/nc/193/0668-01" ] }, { "cite": "192 N. C., 766", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626805 ], "opinion_index": 0, "case_paths": [ "/nc/192/0766-01" ] }, { "cite": "190 N. C., 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612738 ], "weight": 2, "pin_cites": [ { "page": "p. 690" } ], "opinion_index": 0, "case_paths": [ "/nc/190/0684-01" ] }, { "cite": "189 N. C., 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654529 ], "opinion_index": 0, "case_paths": [ "/nc/189/0516-01" ] }, { "cite": "188 N. C., 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654533 ], "opinion_index": 0, "case_paths": [ "/nc/188/0595-01" ] }, { "cite": "187 N. C., 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653891 ], "opinion_index": 0, "case_paths": [ "/nc/187/0400-01" ] }, { "cite": "175 N. C., 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662246 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/175/0731-01" ] }, { "cite": "161 N. C., 238", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270297 ], "opinion_index": 0, "case_paths": [ "/nc/161/0238-01" ] }, { "cite": "181 U. S., 589", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8298323 ], "opinion_index": 0, "case_paths": [ "/us/181/0589-01" ] }, { "cite": "125 N. C., 725", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "74 N. C., 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683295 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/74/0646-01" ] }, { "cite": "175 U. S., 175", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 } ], "analysis": { "cardinality": 806, "char_count": 15956, "ocr_confidence": 0.461, "pagerank": { "raw": 1.0803982845034068e-07, "percentile": 0.5623551797807517 }, "sha256": "704436a288e037f9fbcca99c150b104bff1d96e800ec4dbdd34e567b40a6fb67", "simhash": "1:3d7045d85ebafafa", "word_count": 2765 }, "last_updated": "2023-07-14T19:53:28.956258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. W. H. HICKEY." ], "opinions": [ { "text": "Clabicson, J.\nThe defendant cited the following amendments to the Constitution of the United States, claiming that he is protected under them:\nArt. IY. \u201cThe right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to he searched and the persons or things to be seized.\u201d\nArt. Y. \u201cNo person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the malitia, when in actual service in time of war or public danger; nor shall any person he subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor he deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.\u201d\nWe cannot so hold.\nIn S. v. Godette, 188 N. C., at p. 502, speaking to tbe subject, it is said: \u201cTbe United States Court, in Brown v. New Jersey, 175 U. S., 175, citing numerous authorities, says: 'The first ten amendments to the Federal Constitution contain no restrictions on the powers of the State, but were intended to operate solely on the Federal Government.\u2019 Ensign v. Pennsylvania, 227 U. S., p. 592; S. v. Campbell, 182 N. C., p. 911. This case was taken to the Supreme Court of the United States on writ of error and affirmed. 262 U. S., p. 728; S. v. Simmons, 183 N. C., p. 684.\u201d\nThe defendant contends: \u201cThe illegal search and seizure of the defendant and the result thereof, the conviction of the defendant, violates said Fifth Amendment to the Constitution of the United States, as well as Article I, section 11 of the Constitution of North Carolina, both of which provide in effect that a defendant shall not be required to give evidence against himself. If the State had been required to proceed against the defendant with such legal evidence as it had, no conviction could have been had. The State did not proceed to convict the defendant by any such evidence, but proceeded to convict him by evidence obtained by the seizure of the person, and a search of his person without a process, and without evidence. The defendant was in effect placed on the stand, examined, and such examination used against him to convict him. The defendant insists that the upholding of these provisions of Federal Constitution and the State Constitution are of far greater importance to the dignity of the law than the conviction of a defendant for a mere misdemeanor.\u201d\nArticle I, sec. 11, of the Constitution of North Carolina, invoked, is as follows: \u201cIn all criminal prosecutions every man has the right to be informed of the accusation against him and to confront the accusers and witnesses with other testimony, and to have counsel for his defense, and not be compelled to give evidence against himself or to pay costs, jail fees, or necessary witness fees of the defense, unless found guilty.\u201d\n\u201cIn North Carolina, it has long been the law that a physical fact or condition which was brought out by the illegal action of an officer may be given in evidence against the defendant. S. v. Graham, 74 N. C., 646 (prisoner compelled by officer to put shoe in track). This case has been approved in many decisions since, including S. v. Mallette, 125 N. C., 725, which case was affirmed in the United States Supreme Court on writ of error in Mallett v. N. C., 181 U. S., 589; S. v. Thompson, 161 N. C., 238 and S. v. Neville, 175 N. C., 731. There are quite a number of courts that disagree with the principle established by S. v. Graham, supra. Some of these decisions are cited by the defendant in his brief. \u00a5e do' not think the action of the officers illegal in the present case.\u201d S. v. Godette, supra, at p. 503.\nWe find this in tbe Constitution of North Carolina, not cited by defendant, Article I, section 2: \u201cThat all political power is vested in, and derived from, tbe people; all government of right originates from tbe people, is founded upon their will only, and is instituted solely for tbe good of tbe whole.\u201d\nTbe will of tbe people of North Carolina has been expressed on tbe very question presented on this appeal. On 27 May, 1908, tbe matter was submitted to tbe people of tbe State. Tbe vote \u201cFor tbe manufacture and sale of intoxicating liquor\u201d was 69,416, \u201cAgainst tbe manufacture and sale of intoxicating liquor\u201d was 113,612 \u2014 total vote 183,028, majority against tbe manufactur\u00e9 and sale of intoxicating liquor was 44,196.\nTbe Eighteenth Amendment to tbe Constitution of tbe United States is as follows: \u201cAfter one year from tbe ratification of this article, tbe manufacture, sale, or transportation of intoxicating liquor within, tbe importation thereof into, or tbe exportation thereof from tbe United States and all territory subject to tbe jurisdiction thereof, for beverage purposes, is hereby prohibited.\u201d Forty-five States ratified tbe amendment \u2014 North Carolina on 16 January, 1919. Tbe \u201cVolstead Act\u201d was an Act of Congress, 28 October, 1919. An act supplemental to tbe National prohibition act was approved 23 November, 1921. These acts were passed to carry into effect tbe Eighteenth Amendment to tbe Constitution.\nTbe General Assembly of North Carolina, Public Laws of N. C., 1923, ch. 1, C. S., 3411, passed \u201cAn act to make tbe State law conform to tbe National law in relation to intoxicating liquors,\u201d and is to some extent more stringent than tbe \u201cVolstead Act.\u201d This act has been frequently upheld and construed by this Court. S. v. McAllister, 187 N. C., 400; S. v. Beavers, 188 N. C., 595; S. v. Knight, ibid., 630; S. v. Jarrett, 189 N. C., 516; S. v. Sigmon, 190 N. C., 684; S. v. Pierce, 192 N. C., 766; S. v. Mull, 193 N. C., 668; S. v. Hege, 194 N. C., 526; S. v. Dowell, 195 N. C., 523.\nTbe General Assembly of this State has recently passed an act to teach tbe children in tbe schools of tbe State tbe danger of intoxicating liquors and narcotics on tbe human system. Public Laws 1929, chapter 96, \u201cAn act to require tbe public schools of tbe State to furnish adequate and scientific instruction in tbe subject of alcoholism and narcotism.\u201d This is a wise preventive measure.\nIn S. v. Campbell, 182 N. C., at p. 914-5, tbe law is stated by Clark, C. J., as follows: \u201cIn 3 Cyc., 886, it is said that where 'An offense is committed in tbe presence or view of an officer, within tbe meaning of tbe rule, authorizing an arrest without a warrant, when tbe officer sees it, although at a distance, or bears tbe disturbance created thereby and proceeds at once to the scene thereof, or the offense is continuing, or has not been consummated at the time the arrest is made.\u2019 In the case at bar the officers had information, which proved to be correct, that the defendant was carrying on his person, concealed,' a. quantity of liquor in violation of the provisions of the Consolidated Statutes above quoted. The offense was continuing, and the sale had not been consummated at the time the arrest was made. In many eases, unless an arrest is made under these circumstances, the criminal would escape or the crime be committed before the officer could make affidavit and obtain a warrant. For instance, if the officers had information, which was reliable, that one was carrying a concealed weapon, or was on his way to commit an assault with it, surely it would be their duty to arrest the offender though our statute and our decisions require that in such case they should at once take him before a judicial officer and procure a warrant and institute a judicial investigation.\u201d S. v. Fowler, 172 N. C., 905; S. v. Neville, 175 N. C., 731; S. v. Simmons, 183 N. C., 684; S. v. Jenkins, 195 N. C., 747.\nThe witness for the State, officer Burleson, testified \u201ctook one-half gallon of liquor off of him.\u201d\nThe defendant, in his brief says: \u201cIs evidence by an officer that he obtained one-half gallon of liquor sufficient to sustain a conviction, without further proof as to the kind, quality and strength of the liquor sufficient to show the same intoxicating?\u201d\nThe Conformity Act, Public Laws 1923, chapter 1, section 1 (3 C. S., 3411(a), says \u201c(1) The word \u2018liquor* or the phrase \u2018intoxicating liquor\u2019 shall be construed to include alcohol, brandy, whiskey, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt or fermented liquors, liquids, and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one-half of one percentum or more of alcohol by volume, which are fit for use for beverage purposes,\u201d etc. S. v. Sigmon, supra, p. 690.\n\u201cLiquor,\u201d as the word is commonly used, means intoxicating liquor. S. v. Gulcznski, 120 A 88, 89 (Del.); Shahan v. Hardwick, 118 S. E., 575, 30 Ga. App., 526; Clay v. State, 102 S. E., 367, 24 Ga. App., 811; Armstrong v. State, 265, S. W., 672, 673, 150 Tenn., 416.\nGenerally the word \u201cliquor\u201d implies intoxicating liquor, and therefore proof that a defendant sold \u201cliquor\u201d is sufficient to show, in the absence of adverse testimony, that he sold intoxicating liquor. Smith v. State, 86 S. E., 283, 17 Ga. App., 118.\nEvery contention made by defendant has been frequently decided contrary to the position taken by him on this appeal.\nIn S. v. McAllister, 187 N. C., at p. 404, the following observation is made: \u201cIt is well said by Clark, C. J., in the concurring opinion in S. v. Coleman, 178 N. C., 762: \u2018The intention of the act may be tersely expressed in the phrase, \u201cTaste not, touch not, handle not\u201d the forbidden article (for beverage purposes). It is outlawed by the statute, just as dynamite or any poisonous drug, and for the same reason that the popular will has deemed this necessary for the public welfare, and made the violation of that will a crime.\u2019 \u201d\nIn S. v. Sigmon, 190 N. C., at p. 692, we find: \u201cThe Legislature of North Carolina, part 3 C. S., 3411(b), has said: \u2018And all the provisions of this article shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented.\u2019 This provision is the wisdom of ages. Solomon, the wisest man (Prov., ch. 23, v. 29, 32), said: \u2018Who hath woe? who hath sorrow? who hath contentions? who hath babbling? who hath wounds without cause? who hath redness of eyes? They that tarry long at the wine; ... At the last it biteth like a serpent, and stingeth like an adder.\u2019 \u201d\nWe fully set forth the law on this subject and again \u201cwrite the vision and make it plain upon tables, that he may run that readeth.\u201d Hab. 2 :2. We find\nNo error.", "type": "majority", "author": "Clabicson, J." } ], "attorneys": [ "\u25a0 Attorney-General Brummitt and Assistant Attorney-General Nash for the State.", "Charles Hutchins for defendant." ], "corrections": "", "head_matter": "STATE v. W. H. HICKEY.\n(Filed 4 December, 1929.)\n1. Constitutional Law J a \u2014 Federal provisions as to searches and seizures are not restrictive on states.\nThe provisions of the Federal Constitutional Amendment, Art. IV, securing to the people the right of safety and protection of their persons and property against unreasonable searches and seizures, and providing that no warrant should be issued except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized, are not restrictive of the powers of the State, and apply solely to the Federal Government.\n2. Intoxicating Liquoi\u2019 A d \u2014 Arrest and search of person reasonably suspected of carrying intoxicants is lawful. \u25a0\nWhere an officer sees a person leave his automobile with his appearance indicating that he had something concealed on his person and reasonably giving the impression that the person was carrying intoxicating liquor, the officer may immediately arrest and search such person, and where a half-gallon of liquor is found on the person of the defendant the action of the officer does not violate the provisions of Article I, section 11, of the State Constitution.\nS.Constitutional Law F a \u2014 Provision that defendant may not be compelled to give evidence against self does not apply to physical facts.\nUpon the trial of the defendant for violating the prohibition law the introduction in evidence of testimony of the officer making the arrest that he found a half-gallon jar of liquor on the person of the defendant is competent, and is not in violation of the constitutional provision that a defendant may not be compelled to give evidence against himself, the provision not applying to physical facts or conditions.\n4. Intoxicating Liquor A b \u2014 Turlington Act will be liberally construed.\nOur prohibition act was passed in pursuance of Article I, section 2, of the State Constitution providing that all political power is vested in and derived from the people, and the approval of the people of this statute as expressed in the elections requires a liberal construction of the statute . to carry out its intention as gathered from its related parts and clearly expressed.\n5. Intoxicating Liquor A a \u2014 Turlington Act is valid.\nAn act by our Legislature to make the State law conform to the \u201cVolstead Act\u201d passed by Congress, is valid, and in some respects more stringent than the Congressional act.\n6. Intoxicating Liquor A c \u2014 \u201cLiquor\u201d will be deemed \u201cintoxicating liquor\u201d in the absence of proof to the contrary.\nWhere a defendant is indicted for violating our State prohibition law, evidence that he had in his possession one-half gallon of \u201cliquor\u201d is interpreted as being an intoxicating beverage having the prohibited quantity of intoxicant, or containing more than one-half of one per centum of alcohol by volume, when there is no evidence to the contrary.\n7. Intoxicating Liquor B a \u2014 Evidence of possession of intoxicating liquor is sufficient for directed verdict for possession and transportation.\nWhere upon the trial of the defendant for the violation of the Conformity Act there is testimony of an officer that he took from defendant, after he left his automobile and was entering a building, a half-gallon jar ' of liquor, the defendant introducing no evidence: Held, the evidence was sufficient to support a charge that if the evidence satisfied the jury beyond a reasonable doubt of the defendant\u2019s guilt of possession and transporting, the jury should answer those issues in the affirmative.\nAppeal from Hwrwood, J., and a jury, at April Term, 1929, of Mitchell. No error.\nA. S. Burleson, an officer, testified to the effect, that \u201cI saw him (defendant) get out of the car. He had on a light sweater, and I saw a bulk of something under his arm, and started to go in the door in the Glenn Building in Spruce Pine, and I ran in before he could get into the door 'and caught him and took one-half gallon of liquor from under his sweater.\u201d\nThe court below charged the - jury: \u201cIf this evidence satisfies you beyond a reasonable doubt that the defendant had in his possession liquor, then you would return a verdict of guilty against him for the possession of intoxicating liquor. If this evidence satisfies you beyond a reasonable doubt that the defendant transported liquor \u2014 that is, carried it from one place to another and had it in his custody and control, and moved it from one place to another, you would return a verdict of guilty of transporting. The defendant did not introduce evidence in this ease. That is not to he considered by you to his prejudice. The burden is on the State to satisfy you beyond a reasonable doubt of his guilt. You may retire and make up your verdict.\u201d\nThere was a verdict of guilty. The court below fined the defendant $100 and costs. The defendant excepted and assigned as error the admission of the testimony of the officer, A. S. Burleson. At the close of the State\u2019s evidence, defendant made a motion to dismiss the action or for judgment of nonsuit. C. S., 4643.\n\u25a0 Attorney-General Brummitt and Assistant Attorney-General Nash for the State.\nCharles Hutchins for defendant." }, "file_name": "0045-01", "first_page_order": 115, "last_page_order": 121 }