{ "id": 8624720, "name": "STATE v. VIRGINIA P. AVERY and WILLIE PEACOCK", "name_abbreviation": "State v. Avery", "decision_date": "1952-10-08", "docket_number": "", "first_page": "276", "last_page": "280", "citations": [ { "type": "official", "cite": "236 N.C. 276" } ], "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": "221 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "189 S.E. 183", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623937 ], "opinion_index": 0, "case_paths": [ "/nc/211/0066-01" ] }, { "cite": "110 S.E. 93", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "182 N.C. 907", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659534 ], "opinion_index": 0, "case_paths": [ "/nc/182/0907-01" ] }, { "cite": "142 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652554 ], "opinion_index": 0, "case_paths": [ "/nc/142/0577-01" ] }, { "cite": "27 S.E. 2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611078 ], "opinion_index": 0, "case_paths": [ "/nc/223/0446-01" ] }, { "cite": "55 S.E. 2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628134 ], "opinion_index": 0, "case_paths": [ "/nc/231/0059-01" ] }, { "cite": "40 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 43", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620707 ], "opinion_index": 0, "case_paths": [ "/nc/227/0043-01" ] }, { "cite": "1 S.E. 2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "214 N.C. 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8633025 ], "opinion_index": 0, "case_paths": [ "/nc/214/0787-01" ] }, { "cite": "66 S.E. 2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621152 ], "opinion_index": 0, "case_paths": [ "/nc/234/0236-01" ] }, { "cite": "66 S.E. 2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618836 ], "opinion_index": 0, "case_paths": [ "/nc/234/0112-01" ] }, { "cite": "127 S.E. 590", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "189 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654529 ], "opinion_index": 0, "case_paths": [ "/nc/189/0516-01" ] }, { "cite": "22 S.E. 2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630062 ], "opinion_index": 0, "case_paths": [ "/nc/222/0316-01" ] }, { "cite": "136 S.E. 121", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "192 N.C. 766", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626805 ], "opinion_index": 0, "case_paths": [ "/nc/192/0766-01" ] }, { "cite": "129 S.E. 600", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599745 ], "opinion_index": 0, "case_paths": [ "/nc/190/0239-01" ] }, { "cite": "35 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 560", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613590 ], "opinion_index": 0, "case_paths": [ "/nc/225/0560-01" ] }, { "cite": "52 S.E. 2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629263 ], "opinion_index": 0, "case_paths": [ "/nc/230/0223-01" ] }, { "cite": "53 S.E. 2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 495", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630695 ], "opinion_index": 0, "case_paths": [ "/nc/230/0495-01" ] }, { "cite": "40 S.E. 2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621472 ], "opinion_index": 0, "case_paths": [ "/nc/227/0094-01" ] }, { "cite": "221 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 565, "char_count": 10351, "ocr_confidence": 0.477, "pagerank": { "raw": 1.9591726289315401e-07, "percentile": 0.7377769900870669 }, "sha256": "2095110a53197fa2447055ea4625d2d286257fd3aafaf87cde980748d0ebabcf", "simhash": "1:d340d45b949e294f", "word_count": 1818 }, "last_updated": "2023-07-14T20:03:47.341722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. VIRGINIA P. AVERY and WILLIE PEACOCK." ], "opinions": [ { "text": "BabNhill, J.\nThe record contains eleven exceptive assignments of error. Only one of these, to wit, the exception to the refusal of the court to dismiss under G.S. 15-173, is brought forward and discussed in defendant\u2019s brief. The others are deemed to be abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562; S. v. Jones, 227 N.C. 94, 40 S.E. 2d 700; S. v. Muse, 230 N.C. 495, 53 S.E. 2d 529.\nThe demurrer to the evidence and motion to dismiss under G.S. 15-173 is untenable. The possession of any quantity of liquor upon which the Federal and State taxes have not been paid is, without exception, unlawful. G.S. 18-48; S. v. Barnhardt, 230 N.C. 223, 52 S.E. 2d 904; S. v. McNeill, 225 N.C. 560, 35 S.E. 2d 629.\nNontax-paid liquor was found in defendant\u2019s home. A large number of people were gathered around his house. Some of them were intoxicated. A \u201cdump body load\u201d of one-half gallon jars was found just outside Ms bouse. His conduct toward tbe officers making tbe search tended to sbow guilty knowledge. He bears tbe reputation of being a dispenser of liquor. These and other circumstances disclosed by tbe testimony constitute more than a scintilla of evidence and made out a case for tbe jury.\nThat tbe bouse was rented by tbe feme defendant, and tbe liquor was owned by her were matters offered in defense. They were not to be considered on tbe motion to dismiss.\nFurthermore, that tbe liquor belonged to tbe feme defendant, if such be tbe fact, does not necessarily exculpate tbe defendant. He is tbe bead of bis household. If bis wife kept liquor in bis borne with bis knowledge and consent, it was in bis possession within tbe meaning of tbe law even though actual custody was in tbe wife, S. v. Meyers, 190 N.C. 239, 129 S.E. 600; S. v. Pierce, 192 N.C. 766, 136 S.E. 121, for it is axiomatic that one who aids, abets, or assists another in tbe commission of a misdemeanor is guilty as a principal. S. v. Ward, 222 N.C. 316, 22 S.E. 2d 922; S. v. Jarrett, 189 N.C. 516, 127 S.E. 590; S. v. Jenkins, 234 N.C. 112, 66 S.E. 2d 819; S. v. Parker, 234 N.C. 236, 66 S.E. 2d 907.\nTbe Turlington Act, now G.S. Ob. 18, Art. 1, except as modified or repealed by tbe Alcoholic Beverage Control Act, now G.S. Cb. 18, Art. 3, is still tbe law in this State. S. v. Davis, 214 N.C. 787, 1 S.E. 2d 104; S. v. Wilson, 227 N.C. 43, 40 S.E. 2d 449.\nAfter tbe adoption of this statute, tbe State imposed no tax on alcoholic beverages and it was, with certain exceptions, unlawful to possess any quantity of intoxicating liquor. Under the ABC Act, liquor may be purchased from ABC stores and now it is not unlawful to possess liquor in tbe quantities and under tbe conditions prescribed by that Act.. But, to make certain that this modification of tbe Turlington Act applies only to liquor upon which the taxes imposed by the Federal and State governments have been paid, tbe General Assembly wrote into tbe ABC Act tbe provision which is now G.S. 18-48, making it unlawful to possess any quantity of liquor upon which such taxes have not been paid.\nTbe two Acts constitute tbe body of our law relating to tbe purchase, possession, and sale of intoxicating liquor and must be construed in pari materia. \"When so construed, it becomes apparent that an allegation in a warrant or bill of indictment to tbe effect that tbe Federal and State taxes bad not been paid upon tbe liquor seized or that it was illicit liquor is merely descriptive, S. v. Merritt, 231 N.C. 59, 55 S.E. 2d 804, and does not, as contended by defendant, limit tbe prosecution to any particular section of tbe liquor law or deprive tbe State of tbe benefit of tbe general provisions of tbe law as it nou^ exists. Instead, it facilitates proof of tbe unlawfulness of tbe possession and renders it unnecessary to prove possession of any particular quantity.\nThe defendant moves in this Court that the judgment pronounced be arrested \u201cin the event the Court should find that he was arrested, tried and convicted under G.S. Section 18-48, on the grounds that the said warrant was defective because it alleged two separate offenses in one count.\u201d The motion is without merit and is overruled. S. v. Dilliard, 223 N.C. 446, 27 S.E. 2d 85.\nConstruing the warrant with that degree of liberality required by the statute, G.S. 15-153, it clearly appears that it charges two separate and distinct offenses: (1) unlawful possession, and (2) unlawful possession for the purpose of sale. Furthermore, objection to the warrant on account of duplicity, entered for the first time after verdict, comes too late. S. v. Burnett, 142 N.C. 577; S. v. Mundy, 182 N.C. 907, 110 S.E. 93; S. v. Puckett, 211 N.C. 66, 189 S.E. 183.\nWe feel compelled to call attention to the state of the record in this cause. In almost every respect it fails to comply with the rules of this Court. Rule .19, Rules of Practice in the Supreme Court, 221 N.C. 553. The case on appeal and assignments of error precede the record proper. Neither the verdict of the jury nor the judgment of the court are made to appear except in a certificate of the clerk. Neither the warrant nor the verdict nor the judgment \u2014 indeed no part of the record proper \u2014 is indexed. Though the record is relatively small, it has been necessary for us to search from page to page to find in the record essential information bearing on the questions defendant seeks to present. If counsel desire us to give consideration to their appeals, there must be at least a semblance of compliance with our rules which, in this respect, are simple and require no great degree of astuteness to understand or to follow.\nIn the trial in the court below we find\nNo error.", "type": "majority", "author": "BabNhill, J." } ], "attorneys": [ "Attorney-General McMullan, Assistant Attorney-General Moody, and Robert L. Emanuel, Member of Staff, for the State.", "G. J. Gates and M. E. Johnson for defendant a-ppellant Peacoclc." ], "corrections": "", "head_matter": "STATE v. VIRGINIA P. AVERY and WILLIE PEACOCK.\n(Filed 8 October, 1952.)\n1. Criminal Law \u00a7 79\u2014\nExceptive assignments of error not brought forward and discussed in the brief are deemed abandoned. Rule of Practice in the Supreme Court No. 28.\n2. Intoxicating Liquor \u00a7 4a\u2014\nThe possession anywhere in this State of any quantity of liquor upon which the Federal and State taxes have not been paid is, without exception, unlawful. G.S. 18-48.\n3. Intoxicating Liquor \u00a7 9d\u2014\nEvidence to the effect that defendant had the reputation of dispensing liquor, that when the officers attempted to search his premises defendant objected, tried to get between the officers and the whiskey, and that the officers found about a pint of nontax-paid liquor in his home and a quantity of fruit jars at the back door, is held sufficient to overrule defendant\u2019s motion to nonsuit in a prosecution for unlawful possession of intoxicating liquor.\n4. Same\u2014\nTestimony of defendant that bis wife bad rented the premises and that the liquor found therein belonged to her, relates to matters in defense and should not be considered on motion to nonsuit.\n5. Criminal Law \u00a7 52a (1) \u2014\nDefendant\u2019s evidence relating to matters in defense should not be considered on motion to nonsuit. G.S. 15-173.\n6. Intoxicating Liquor \u00a7 4c: Criminal Law \u00a7 8b\u2014\nIf a wife keeps liquor in the home with the knowledge and consent of the husband, the liquor is in his possession within the meaning of the law, even though she has actual custody, since one who aids, abets, or assists another in the commission of a misdemeanor is guilty as a principal.\n7. Intoxicating Liquor \u00a7 2\u2014\nThe Turlington Act is the law in this State except in so far as it is modified or repealed by the Alcoholic Beverage Control Act, and the two statutes must be construed in pari materia as constituting the law in this State as relating to the purchase, possession and sale of intoxicating liquor.\n8. Intoxicating Liquor \u00a7 9a\u2014\nAllegations in a warrant or indictment that taxes had not been paid on liquor seized in defendant\u2019s home is merely descriptive and does not limit the prosecution to any particular section of the liquor law, but merely renders it unnecessary to prove possession of any particular quantity.\n9. Indictment and Warrant \u00a7 8\u2014\nWhere the indictment in one count clearly charges two separate and distinct offenses and defendant is acquitted by a verdict of the jury as to one of them, his motion in arrest of judgment for duplicity cannot be allowed. G.S. 15-153.\n10. Same: Criminal Law \u00a7 56\u2014\nObjection to the warrant on account of duplicity must be entered before verdict, and a motion in arrest of judgment on this ground after verdict comes too late.\n11. Criminal Law \u00a7 77b\u2014\nCounsel must observe the rules of court in regard to the order, form, and proper indexing of the record if they desire consideration to be given their appeals.\nAppeal by defendant Peacock from Harris, J., March Term, 1952, JohNSTON. No error.\nCriminal prosecution under a warrant charging (1) the unlawful possession of nontax-paid liquor, and (2) the unlawful possession of nontax-paid liquor for the purpose of sale.\nOn 12 January 1952, officers of Johnston County procured a search warrant and at about 9 :30 p.m. went to the home of defendant to search his premises for liquor. They found fifty to one hundred persons around the house and 150 to 200 at a nearby filling station operated by the feme defendant\u2019s brother. Some of those around the house were \u201chighly intoxicated.\u201d Defendant came up and \u201cstarted hollering \u2018you have got to read the search warrant before you enter.\u2019 \u201d The officers went in the kitchen. They found a half-gallon jar containing about one pint of nontax-paid liquor between the stove and table. Defendant went in ahead of the officers and tried to get between them and the whiskey.\nThe officers also found about a \u201cdump body load\u201d of one-half gallon fruit jars right at the back door. They were just like the one on the inside. There was evidence also that defendant has a bad reputation for selling whiskey.\nThe defendant offered evidence tending to show that the whiskey belonged to the feme defendant, that she was using it under the direction of a physician, and that he did not know the whiskey was in the house.\nThe jury returned a verdict of guilty of the unlawful possession of nontax-paid liquor and not guilty on the second count charging possession for the purpose of sale. The court pronounced judgment on the verdict and defendant appealed.\nAttorney-General McMullan, Assistant Attorney-General Moody, and Robert L. Emanuel, Member of Staff, for the State.\nG. J. Gates and M. E. Johnson for defendant a-ppellant Peacoclc." }, "file_name": "0276-01", "first_page_order": 328, "last_page_order": 332 }