{
  "id": 8627658,
  "name": "STATE v. CHARLES MILLER",
  "name_abbreviation": "State v. Miller",
  "decision_date": "1957-09-18",
  "docket_number": "",
  "first_page": "608",
  "last_page": "611",
  "citations": [
    {
      "type": "official",
      "cite": "246 N.C. 608"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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      "cite": "191 N.C. 571",
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    {
      "cite": "243 N.C. 190",
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    {
      "cite": "243 N.C. 182",
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      "cite": "76 S. Ct. 712",
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      "reporter": "S. Ct.",
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    },
    {
      "cite": "100 L. Ed. 1451",
      "category": "reporters:federal",
      "reporter": "L. Ed.",
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    },
    {
      "cite": "351 U.S. 919",
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      "cite": "243 N.C. 243",
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  "analysis": {
    "cardinality": 345,
    "char_count": 6705,
    "ocr_confidence": 0.559,
    "pagerank": {
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      "percentile": 0.2072846718090514
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    "simhash": "1:6306e5b1c600865a",
    "word_count": 1162
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  "last_updated": "2023-07-14T21:30:34.544387+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. CHARLES MILLER."
    ],
    "opinions": [
      {
        "text": "JOHNSON, J.\nThe defendant\u2019s assignments of error challenge the correctness of the rulings of the trial court in (1) refusing to suppress the State\u2019s evidence and (2) overruling the motion for judgment as of nonsuit. Since the motion for nonsuit was based on the contention that all the evidence was obtained in the course of an illegal search and therefore incompetent, the pivotal question presented by the appeal is whether the defendant's automobile was illegally searched.\nThe pertinent evidence may be summarized as follows: Highway Patrolman J. G. Wilson said he met the automobile driven by the defendant, recognized him, and knew he did not have a driver\u2019s license; that he stopped the defendant \u201cand asked him if he had ever got a driver\u2019s license\u201d; that the defendant said he had not; that he then told the defendant he \u201cwould have to take him in.\u201d Wilson testified further \u25a0that he asked the defendant if he had \u201canything in the car\u201d; that the defendant answered: \u201cGo ahead and look; and I said, \u2018No, I will get a search warrant,\u2019 and I got them out of the car and put them in my car and was going to call somebody to come and drive the car in, and I told Charles (the defendant) I was going to bring him in and get a search warrant and he offered me the key (s) again to the car and I didn\u2019t take it, and after he got in my car, he said, \u2018Give me the key and I will open it,\u2019 and he opened the trunk and I saw two cases of whiskey in it, and after we brought the car in, there was a third case; it was in an old sack and I didn\u2019t notice it when he opened the trunk up. He was in my car, and he said, \u2018Give me the key and I will open it up.\u2019 \u201d Further testimony of Patrolman Wilson disclosed that each of the three cases of whisky contained six gallons; that it was nontaxpaid whisky, with no stamps on any of the containers. The whisky was offered in evidence.\nSheriff Wilkins testified that in response to a call he went to the place where Patrolman Wilson had stopped the defendant\u2019s car; that he looked in the back of the car and saw the three cases, one with a sack over it.\nIt is manifest that the defendant consented to the search. In fact, it appears that he expressly invited the search. Under these circumstances, he cannot be heard to complain that his constitutional or statutory rights were violated. The case is controlled by the principles explained and applied in S. v. McPeak, 243 N.C. 243, 90 S.E. 2d 501; certiorari denied, 351 U.S. 919, 100 L. Ed. 1451, 76 S. Ct. 712.\nThe testimony of the officers was competent. The motion to suppress was properly overruled. There was ample evidence to carry the case to the jury over the defendant\u2019s motion for nonsuit. The evidence of absence of tax stamps was 'prima jade evidence that the whisky was nontaxpaid, and the possession of more than one gallon constituted prima facie evidence of possession for sale. G.S. 18-32. The trial and verdict will be upheld.\nHowever, where, as here, the defendant appeals immediately from a judgment imposing an active prison sentence on one count and a suspended sentence on two other counts, and there is no error in the trial of any count, the cause must be remanded for proper judgment on the two counts to which the suspended sentence relates. This is so for the reason that the suspended sentence cannot stand in the absence of defendant\u2019s consent thereto. S. v. Ritchie, 243 N.C. 182, 90 S.E. 2d 301; S. v. Ingram, 243 N.C. 190, 90 S.E. 2d 304. Cf. S. v. Lakey, 191 N.C. 571, 132 S.E. 570; S. v. Canady, post, 613. Here it appears that the defendant gave notice of appeal immediately after the entry of judgment, thus indicating he did not consent to the suspended sentence entered below.\nTherefore the portion of the judgment imposing the suspended sentence will be stricken out and the cause remanded for a proper judgment on the last two counts. The active prison sentence imposed on the first count will remain in full force and effect.\nRemanded.",
        "type": "majority",
        "author": "JOHNSON, J."
      }
    ],
    "attorneys": [
      "Attorney-General Patton and Assistant Attorney-General McGal-liard for the State.",
      "Hamrick & Hamrick for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE v. CHARLES MILLER.\n(Filed 18 September, 1957.)\n1. Criminal Law \u00a7 79: Searches and Seizures \u00a7 1\u2014\nWhere it appears that defendant not only consented to but invited a search of his car without a warrant, he may not complain of the introduction in evidence of nontaxpaid whisky found therein, and his motion to suppress the evidence and motion for nonsuit on the ground that all the evidence was obtained in the course of the illegal search, are properly denied.\n2. Intoxicating Liquor \u00a7 9 cl\u2014\nEvidence that in excess of one gallon of nontaxpaid whisky was found in defendant\u2019s automobile is sufficient to be submitted to the jury in a prosecution for possession of whisky upon which the requisite taxes had not been paid and possession of whisky for the purpose of sale, the absence of .tax stamps being prima facie evidence that the whisky was nontaxpaid and the possession of more than one gallon being prima facie evidence of possession for the purpose of sale. G.S. 18-32.\nS. Criminal Law \u00a7 135\u2014\nWhere active sentence is imposed on one count and suspended sentences are imposed on the other two counts in the indictment, and the defendant gives notice of appeal immediately after entry of judgment, in the absence of error in the trial the cause must be remanded for proper sentence on the counts upon which sentences were suspended, since suspended sentences cannot stand in the absence of defendant\u2019s consent thereto.\nAppeal by defendant from Clarkson, J., and a jury, at May Term, 1957, of RutheReoed.\nCriminal prosecution tried on appeal from the County Recorder\u2019s Court upon a warrant charging the defendant with (1) possession of nontaxpaid whisky, (2) possession of nontaxpaid whisky for the purpose of sale, and (3) transportation of nontaxpaid whisky.\nThe defendant moved to suppress the State\u2019s evidence on the ground that it was obtained in the course of an illegal search of the defendant\u2019s automobile without a search warrant. Motion overruled. Defendant excepted.\nWhen the State rested the defendant offered no evidence but moved for judgment as of nonsuit. Motion overruled. Defendant excepted.\nThe jury returned a verdict of guilty as charged. The judgment pronounced imposed (1) an active prison sentence on the first count, charging possession of nontaxpaid whisky, and (2) a prison sentence suspended upon specified conditions on the other two counts charging possession of nontaxpaid whisky for the purpose of sale and transportation of nontaxpaid whisky, the suspended sentence to begin at the expiration of the active sentence. From the judgment so pronounced, the defendant appeals.\nAttorney-General Patton and Assistant Attorney-General McGal-liard for the State.\nHamrick & Hamrick for defendant, appellant."
  },
  "file_name": "0608-01",
  "first_page_order": 658,
  "last_page_order": 661
}