{ "id": 8629309, "name": "STATE v. W. C. NORRIS", "name_abbreviation": "State v. Norris", "decision_date": "1934-02-28", "docket_number": "", "first_page": "191", "last_page": "198", "citations": [ { "type": "official", "cite": "206 N.C. 191" } ], "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": "183 N. C., 775", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659022 ], "opinion_index": 0, "case_paths": [ "/nc/183/0775-01" ] }, { "cite": "106 N. C., 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652128 ], "opinion_index": 0, "case_paths": [ "/nc/106/0736-01" ] }, { "cite": "187 N. C., 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653319 ], "opinion_index": 0, "case_paths": [ "/nc/187/0088-01" ] }, { "cite": "202 N. C., 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626687 ], "opinion_index": 0, "case_paths": [ "/nc/202/0397-01" ] }, { "cite": "119 N. C., 779", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656138 ], "opinion_index": 0, "case_paths": [ "/nc/119/0779-01" ] }, { "cite": "113 N. C., 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653750 ], "opinion_index": 0, "case_paths": [ "/nc/113/0642-01" ] }, { "cite": "93 N. C., 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274295 ], "opinion_index": 0, "case_paths": [ "/nc/93/0493-01" ] }, { "cite": "185 N. C., 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658021 ], "opinion_index": 0, "case_paths": [ "/nc/185/0752-01" ] }, { "cite": "190 N. C., 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599745 ], "opinion_index": 0, "case_paths": [ "/nc/190/0239-01" ] }, { "cite": "120 N. C., 106", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "90 N. C., 197", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8689852 ], "opinion_index": 0, "case_paths": [ "/nc/90/0197-01" ] }, { "cite": "166 N. C., 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268686 ], "opinion_index": 0, "case_paths": [ "/nc/166/0097-01" ] }, { "cite": "65 N. C., 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955232 ], "opinion_index": 0, "case_paths": [ "/nc/65/0029-01" ] }, { "cite": "159 N. C., 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658029 ], "opinion_index": 0, "case_paths": [ "/nc/159/0265-01" ] }, { "cite": "170 N. C., 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662450 ], "opinion_index": 0, "case_paths": [ "/nc/170/0737-01" ] }, { "cite": "129 N. C., 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661806 ], "opinion_index": 0, "case_paths": [ "/nc/129/0546-01" ] }, { "cite": "35 N. C., 256", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "190 N. C., 687", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "184 N. C., 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271981 ], "pin_cites": [ { "page": "769" } ], "opinion_index": 0, "case_paths": [ "/nc/184/0663-01" ] } ], "analysis": { "cardinality": 877, "char_count": 20049, "ocr_confidence": 0.487, "pagerank": { "raw": 2.4066925450869156e-07, "percentile": 0.7995134079245547 }, "sha256": "d0ce27ba5236b99b8ef7219981a2e811adade710f6387238fbba6a1d1b6ef7f2", "simhash": "1:5531a6b2d292b257", "word_count": 3632 }, "last_updated": "2023-07-14T19:27:02.537957+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. W. C. NORRIS." ], "opinions": [ { "text": "ClaeksoN, J.\nThe first exception and assignment of error of defendant is as follows: \u201cFor that the court refused to direct the jury to return a verdict of not guilty.\u201d This exception and assignment of error cannot be sustained. O. S., 4643, is as follows: \u201cWhen on the trial of any criminal action in the Superior Court, or in any criminal court, the State has produced its evidence and rested its case, the defendant may move to dismiss the action or for judgment of nonsuit. If the motion is allowed, judgment shall be entered accordingly; and such judgment shall have the force and effect of a verdict of 'not guilty\u2019 as to such defendant. If the motion is not allowed, the defendant may except; and if the defendant introduces no evidence, the case shall be submitted to the jury as in other cases, and the defendant shall have the benefit of his exception on appeal to the Supreme Court.\nNothing in this section shall prevent the defendant from introducing evidence after his motion for nonsuit has been overruled; and he may again move for judgment of nonsuit after all of the evidence in the case is concluded. If the motion is then refused, upon consideration of all the evidence, the defendant may except and, after the jury has rendered its verdict, he shall have the benefit of such latter exception on appeal to the Supreme Court. If defendant\u2019s motion for judgment of nonsuit be granted, or be sustained on appeal to the Supreme Court, it shall in all cases have the force and effect of a verdict of 'not guilty.\u2019 \u201d\nThis section serves, and was intended to serve, the same purpose in criminal prosecutions as is accomplished by section 567, in civil actions. S. v. Fulcher, 184 N. C., 663, 769; S. v. Sigmon, 190 N. C., 687.\nThis motion of the defendant was made at the close of all the evidence. No motion of nonsuit or to dismiss under the above statute was made. \u00a5e think there was plenary evidence to be submitted to the jury. The second exception and assignment of error of defendant is as follows: \u201cThe defendant moved that the jury be instructed upon all the evidence that as a matter of law, the defendant should be discharged as having been placed in former jeopardy in the trial in the recorder\u2019s court.\u201d This exception and assignment of error cannot be sustained..\nIn S. v. Thornton, 35 N. C., 256 (251-258) : \u201cA nolle prosequi in criminal proceedings, is nothing but a declaration, on the part of the prosecuting officer, that he will not at that time prosecute the suit further. Its effect is to put the defendant without day \u2014 that is, he is discharged and permitted to leave the court, without entering into a recognizance to appear at any other time \u2014 1 Ch. Cr. L., 480; but it does not operate as an acquittal, for he may afterwards be again indicted for the same offense, or fresh process may be issued against him upon the same indictment, and he be tried upon it. 6 Mod., 261; 1 Sal., 21.\u201d S. v. Smith, 129 N. C., 546; S. v. Faggart, 170 N. C., 737 (744); Wilkinson v. Wilkinson, 159 N. C., 265.\nThe court below ruled out the parol evidence in regard to contradicting the record. The record judgment docket, in the county recorder\u2019s court for Columbus County is as follows: \u201cState v. W. C. and Jetty Norris, 11 October, 1932. N. P. (nolle prosequi.)\u201d We do not think that the record can be impeached in this collateral way under the facts and circumstances of this case by parol evidence.\nArticle 19, County Recorder\u2019s Court, O. S., 1563, is as follows: \u201cIn any county in which a municipal recorder\u2019s court may not be established under the provisions of this subchapter, or in which such court has in fact not been established in the county seat, the board of commissioners may, in their discretion, establish, in the manner provided by this article, a recorder\u2019s court for the entire county, which shall be a court of record and shall be held at the county seat.\u201d\nRecorder\u2019s court for Columbus County is declared by statute, \u201cshall be a court of record.\u201d\nIn Foster v. Woodfin, 65 N. C., 29 (30-31) : \u201cThe proceedings of a court not of record may be proved as other similar facts are. The proceedings of courts of record can be proved by their records only; this is by reason of the vagueness and uncertainty of parol proof as to such matters, and of the facility which the record affords of proving them with certainty. Public policy and convenience require the rule, and a necessary consequence from it is the absolute and undeniable presumption that the record speaks the truth. This presumption, however, would be inconsistent with justice, if it were held to mean anything more than that the record may not be impeached collaterally.\u201d\nIn Hopkins v. Crisp, 166 N. C., 97 (99) : \u201cIt is well settled that where it appears upon the face of the record that the court had acquired jurisdiction of the parties and of the subject-matter of the action, the judgment therein is valid, however irregular it may be, and it must stand until set aside in a proper proceeding by competent authority. England v. Garner, 90 N. C., 197; Harrison v. Hargrove, 120 N. C., 106.\u201d\nThe third exception and assignment of error of defendant is as follows: \u201cFor that the court charged the jury that if it find beyond a reasonable doubt the facts as shown by the testimony of all the witnesses and the record evidence, it would be its duty to return a verdict of guilty.\u201d We do not think this exception and assignment of error can be sustained.\nN. C. Code, 1931 (Michie), section 3411(b) (Public Laws, 1923, chap. 1, sec. 1), is as follows: \u201cNo person shall manufacture, sell, barter, transport, import, export, deliver, furnish, purchase, or possess any intoxicating liquor except as authorized in this article; and all the provisions of this article be liberally construed to the end that the use of intoxicating liquor as beverage may be prevented. Liquor for non-beverage purposes and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, furnished, and possessed, but only as provided by Title II of 'The Volstead Act,\u2019 act of Congress enacted October twenty-eighth, one thousand nine hundred and nineteen, an act supplemental to the National Prohibition Act, 'H. R., 7294/ an act of Congress approved November twenty-third, one thousand nine hundred and twenty-one.\u201d\nLatter part sec. 3411(d) (Public Laws, 1923, chap. 1, sec. 4), is as follows: \u201cIt shall be unlawful to have or possess any liquor or property designated for the manufacture of liquor intended for use in violating this article, or which has been so used, and no property rights shall exist in any such liquor or property.\u201d The learned solicitor drew the bill of indictment against the defendant under the above law.\nThe evidence was to the effect that certain parties with a search warrant went to defendant\u2019s place. The search warrant was called to defendant\u2019s attention, as they drove the car in the yard. (1) Defendant immediately went to feed some hogs. (2) His wife ran out of the house with three pints of liquor in her lap and some in a fruit jar and hid it near the house under some pea vines. (3) The boy took some liquor and ran across the branch, pouring out the liquor which he had in half-gallon jars, as he ran. (4) His daughter took some sacks and threw them over a 30-gallon drum. (5) Two cases of home brew were found in tbe chicken coop, 3 dozen bottles in the case. They found several jars and jugs in the house. There was also found two 50-gallon barrels that had mash in them. They found the place where the rig had been, the coals still hot and trees broken over the still place to hide it, this was about 50 to 75 yards from the house. Two empty barrels in the barn.\nWhen the searchers appeared, the man went to feed his hogs, the wife ran out of the house with liquor and hid it, the boy took some and ran and spilled it as he ran. The daughter covered up the old 30-gallon drum. The scene was like a chicken hawk flying into a barn lot and the chickens scattering. We do not think the charge of the court below prejudicial. In S. v. Meyers, 190 N. C., 239 (243), citing many authorities : \u201cIf the liquor was within the power of the defendant, in such a sense that he could and did command its use, the possession was as complete within the meaning of the statute as if his possession had been actual.\nThe possession may, within this statute, be either actual, or constructive.\u201d\nIn S. v. Estes, 185 N. C., 752 (754), speaking to the subject: \u201cBut where, as an inference of law the uncontradicted evidence, if accepted as true, establishes the defendant\u2019s guilt it is permissible for the court to instruct the jury to return a verdict of guilty if they find the evidence to be true beyond a reasonable doubt. 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.\u201d\nWhere the intent is an ingredient of the crime, the rule is different. It is said in S. v. Rawls, 202 N. C., 397 (399) : \u201cThe fraudulent intent in this case was a question of fact for determination by the jury and not an inference of law for the decision of the court.\u201d\nThe jury rendered a verdict of guilty. The verdict was a general one. In S. v. Switzer, 187 N. C., 88 (96-97), speaking to the subject: \u201cThere was a general verdict of guilty, which, in law, was a verdict of guilty on each and every count. The general verdict of guilty upon two counts will be sustained if the evidence justifies either. S. v. Toole, 106 N. C., 736; S. v. Strange, 183 N. C., 775.\u201d\nWe see on the entire record no prejudicial or reversible error. The ease is a most flagrant violation of the law. The distillery was in the very shadow of the home. On the premises and in the home was liquor and the implements used in the traffic. This is a government founded on the consent of the governed, a democracy, the best so far devised by the human family. The will of the majority under constitutional limitations, the supreme law of the land.\nThe use of alcohol is recognized as a habit-forming drug. The General Assembly of North Carolina, Public Laws of 1929, chap. 96, passed an act to require in the public schools of the State instruction \u201cof the effects of alcoholism and narcotism on the human system.\u201d This teaching to have the effect to prevent the use of these habit-forming drugs, so destructive to the human family.\nThe people of this State on 27 May, 1908, voted \u201cagainst the manufacture and sale of intoxicating liquor\u201d by a majority of 44,196. On 7 November, 1933, this State, out of a total vote of 415,536, voted 184,572 majority for dry delegates against the repeal of the Eighteenth Amendment. From these mandates of the people, it is the duty of all law officers to enforce and the people to obey this and we may say, all other laws on the statute books \u2014 our civilization depends on orderly government. The able and learned judge in the court below tried the case on the well settled principles of law applicable to the facts. In the record, we find\nNo error.", "type": "majority", "author": "ClaeksoN, J." } ], "attorneys": [ "Attorney-General Brummitt and Assistant Attorney-General Seawell for the State.", "R. H. Burns & Son for defendant." ], "corrections": "", "head_matter": "STATE v. W. C. NORRIS.\n(Filed 28 February, 1934.)\n1. Criminal Law I j \u2014 Motion for nonsuit must be made at close of State\u2019s evidence in order for motion at close of all evidence to be considered.\nC. S., 4643, serves tbe same purpose in criminal prosecutions as C. S., 567, serves in civil actions, and a motion for judgment of nonsuit under C. S., 4643, must be made at tbe close of tbe State\u2019s evidence in order for a motion thereunder made at tbe close of all tbe evidence to be considered.\n2. Intoxicating Eiquor G c\u2014\nEvidence of defendant\u2019s guilt in tbis prosecution for possession of intoxicating liquor and implements for its manufacture, C. S., 3411(b), (d), is held sufficient, and defendant\u2019s motion as of nonsuit was correctly refused.\n3. Criminal law F e\u2014\nA nolle proseqm in a criminal action will not support a plea of former jeopardy upon a subsequent prosecution for tbe same offense.\n4. Criminal Law G m\u2014\nTbe judgment of a recorder\u2019s court must be proven by tbe records of tbe court, and its record may not be impeached collaterally by parol evidence.\n5. Intoxicating Liquor G d \u2014 Evidence of defendant\u2019s guilt of possession held sufficient to suppoi*t instruction in this case.\nUncontradieted evidence that upon tbe officers\u2019 showing of a search warrant to defendant, the defendant went out to feed his bogs and that other members of his family tried to dispose of or conceal intoxicating liquor and implements for its manufacture which were in the house, and that tbe officers found liquor and implements in tbe bouse and a rig lately fired near the bouse is held sufficient to support an instruction by the trial court that tbe jury should find defendant guilty if they believed tbe testimony beyond a reasonable doubt.\n6. Intoxicating Liquor* B a\u2014\nActual or constructive possession of intoxicating liquor is sufficient for a conviction under C. S., 3411(b).\n7. Criminal Law I j\u2014\nWhere tbe uncontradicted evidence, if accepted as true, establishes defendant\u2019s guilt, tbe court may instruct the jury to find tbe defendant guilty if they believe tbe evidence beyond a reasonable doubt, but in crimes in which intent is an ingredient the question of intent is ordinarily for tbe jury.\nAppeal by defendant from Sinclair, J., and a jury, at April Term, 1933, of Columbus.\nNo error.\nTbe bill of indictment is as follows:\n\u201cThe jurors for the State upon their oath present, that \"W\\ C. Norris, late of the county of Columbus, on 1 October, 1932, with force and arms, at and in the county aforesaid, did unlawfully and wilfully purchase, possess, sell, transport, intoxicating liquors or possess equipment, implements or ingredients for the purpose of manufacturing intoxicating liquors against the form of the statute in such case made and provided and against the peace and dignity of the State. Ejelltjm, Solicitor.\u201d\nA true bill was found by the grand jury against the defendant. The defendant entered a plea of not guilty and a plea of former, jeopardy.\nThe evidence on the part of the State was as follows: II. B. Bruton testified in part: \u201c1 went there with a search warrant and found some liquor out in the field. There were three pints and some in a fruit jar; three short pints. We found it out in Mr. Norris\u2019 field. It was about as close to his house as from here to the end of the courthouse there. It was under some pea vines. I saw his wife go out in the field and hide it. She carried it from somewhere about the house. The defendant at the time was out in the field not far from the house, working, feeding his hogs. We found two cases of home brew in the chicken coop, put on two pieces over the door. The cases were like coca cola cases or bottled stuff. I reckon there were three dozen bottles to the case. I believe that\u2019s what there was. I never counted it. I believe there were three dozen to the ease. That\u2019s about all I know about it. We found an old stand, a gasoline drum in the edge of the yard, wrapped up in some sacks. The sacks were not big enough to hold it; they were laid over it. I examined the drum. It had been smutted and it looked like it had been around fire, and it smelled like beer, the kind of beer they make whiskey out of. I don\u2019t remember whether or not we found any clay or mud on it about the top of it. I didn\u2019t go in the house; Mr. Watson and Mr. Stephens went in the house. I could not swear that the home brew is intoxicating. I have heard that the liquor they call home brew is intoxicating. We carried the home brew to Tabor.\u201d\nN. A. Watson testified in part as follows: \u201cI went up there with Mr. Stephens, and Mr. Stephens called Mr. Norris\u2019 attention to the search warrant he had to search his place, and he was going to feed some hogs, and he didn\u2019t go back with us and we drove the car in the yard, and his daughter run in the house, and I says, 'Boys, we will have to go now, or we won\u2019t get it,\u2019 and we went in the house and his wife run out with something in her lap, and his oldest .boy taken two jugs under his arms and went across the field, and she put the liquor in the pea vines. Me and Mr. Bruton run up and we got the liquor and brought it to the house, and we found several jars and jugs in there that had had liquor in them, and we found two cases of home brew. I don\u2019t know whether there was two dozen or three dozen in the case. \u00a5e did not catch the boy. He ran across the branch pouring the liquor out on the way, and we could smell it on the bushes. They were about half-gallon jars. The boy was a good runner, and he had a pretty good start on us. His daughter taken some sacks and throwed them over that old drum that looked to be about a thirty-gallon drum and it had clay on it, and she covered it up with some little bags, and it had four brackets and it was smutty, and there were two fifty-gallon barrels that had had mash in them, and they were muddy, and right back of the barn was a ditch that went through his field, and there was where the stuff had been poured out, or in, on Friday night and this was Saturday morning. That was the old mash. \"We found the place where the rig had been. There was a hole about like the size of the barrel, and the coals had been raked back in there, and they were still hot. I could not stand my hand in it, and there were some trees broke over the place to hide it. From the house the hole was about as far as that building across on the corner, fifty or seventy-five yards probably. The barn was between this hole, the ditch and the house. The field was between this hole, the ditch and the house. It was right side the ditch and there was a bridge below where the still was, or at least where it looked like it was manufactured, and he had the two empty barrels in his barn.\u201d\n\u201cThe defendant offered and the State admitted in evidence judgment docket No. 4, county recorder\u2019s court, Columbus County, judgment No. 4214, which reads as follows: State v. W. C. and Jetty Norris, 11 October, 1932; N. P. Docketed 11 October, 1932.\nThe notation N. P.\u2019 was admitted by the State to indicate a nolle prosequi\nDefendant introduced E. A. Maultsby, judge of the recorder\u2019s court, as a witness. The record is as follows: Q. \u201cDid you try the case pending at bar now?\u201d Mr. Kellum: \u201cObjection.\u201d Q. \u201cDid you try the case of State v. W. C. Norris and Jetty Norris?\u201d Mr. Kellum: \u201cObjection.\u201d Court: \u201cThat is not contradicting the record.\u201d A. \u201cYes, sir.\u201d Q. \u201cGo ahead and tell just what happened at the trial?\u201d A. \u201cThey were indicted for having whiskey still in their possession, is my recollection.\u201d Mr. Kellum: \u201cIt occurs to us that, this being a court of record, that the record would show what took place with reference to that case.\u201d Court: \u201cYes, sir, you can\u2019t contradict the record.\u201d Q. \u201cDid you hear the evidence?\u201d Mr. Kellum: \u201cObjection.\u201d A. \u201cYes, sir.\u201d Q. \u201cWhat disposition did you make of the case of State v. W. 0. Norris and Jetty Norris?\u201d Mr. Kellum: \u201cObjection.\u201d Sustained.\nAt the close of all the evidence the defendant moved for a directed verdict of not guilty. Motion overruled. Defendant excepted.\nThe defendant moved that the jury be instructed, upon all the evidence, that as a matter of law the defendant should be discharged as having been placed in former jeopardy in the trial in the recorder\u2019s court. Motion overruled. Defendant excepted.\nWhereupon, his Honor charged the jury as follows: \u201c(The court instructs you if you find beyond a reasonable doubt the facts as shown by the testimony of all the witnesses and the record evidence, it will be your duty to return a verdict of guilty.) If you do not believe the witnesses, you would return a verdict of not guilty.\u201d\nTo so much of his Honor\u2019s charge as is in brackets above the defendant excepts.\nThe jury returned a verdict of guilty. Judgment was rendered by the'court below on the verdict. The defendant assigned errors on the above exceptions and appealed to the Supreme Court.\nAttorney-General Brummitt and Assistant Attorney-General Seawell for the State.\nR. H. Burns & Son for defendant." }, "file_name": "0191-01", "first_page_order": 253, "last_page_order": 260 }