{
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  "name": "STATE v. TOMMY TESSNEAR",
  "name_abbreviation": "State v. Tessnear",
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    "judges": [],
    "parties": [
      "STATE v. TOMMY TESSNEAR."
    ],
    "opinions": [
      {
        "text": "Shaep, J.\nThe State\u2019s evidence was sufficient to overrule defendant\u2019s motions of nonsuit. State v. Ryals, 244 N.C. 75, 92 S.E. 2d 443; State v. Harrison, 239 N.C. 659, 80 S.E. 2d 481; State v. Avery, 236 N.C. 276, 72 S.E. 2d 670. He is, however, entitled to a new trial for the error he assigns in the charge. The possession of any quantity of non-taxpaid liquor is, without exception, unlawful and, under G.S. 18-11, such possession is pnma facie evidence that such liquor is kept for the purpose of being sold. State v. Guffey, 252 N.C. 60, 112 S.E. 2d 734; State v. Hill, 236 N.C. 704, 73 S.E. 2d 894. Prima facie evidence is evidence sufficient to justify, but not to compel, a finding of the ultimate fact to be proved. Finance Co. v. O\u2019Daniel, 237 N.C. 286, 74 S.E. 2d 717. It must be weighed by the jury like any other evidence and considered along with all the other evidence in the case before the jury reaches its verdict. \u201cIn criminal cases this evidence, coupled with other evidence, must establish defendant\u2019s guili beyond a reasonable doubt. Defendant is entitled to have the jury scrutinize this evidence as it does all of the other evidence with a presumption of innocence in his favor.\u201d State v. Bryant, 245 N.C. 645, 648, 97 S.E. 2d 264, 267; Stansbury, North Carolina Evidence \u00a7 203 (2d Ed. 1963).\nFrom the mere possession of nontaxpaid whiskey G.S. 18-11 authorizes, but does not compel, the jury to infer that the possessor intended to sell the whiskey. The statute raises a permissible inference. Stansbury, op. cit. supra, \u00a7 215. In characterizing it \u201ca deep presumption\u201d the trial judge expressed an opinion as to the strength of the evidence. Such an expression is prohibited by G.S. 1-180. State v. Anderson, 263 N.C. 124, 139 S.E. 2d 6. In State v. Benton, 226 N.C. 745, 40 S.E. 2d 617, defendant was granted a new trial because the trial judge told the jury, when it reported it could not reach a verdict, that the evidence was \u201crather clear\u201d and the jury should agree if possible. In Bonner v. Hodges, 111 N.C. 66, 15 S.E. 881, the judge charged the jury that a circumstance shown in the evidence was \u201ca strong badge of fraud.\u201d In granting a new trial, Avery, J., speaking for the Court, said, \u201c(U)nder our statute it is only where the law gives to testimony an artificial weight that the judge is at liberty to mention the sufficiency of proof at all in delivering his instructions to the jury.\u201d Id. at 68, 15 S.E. at 882. Accord, Earnhardt v. Clement, 137 N.C. 91, 49 S.E. 49.\nUnder the circumstances here, the admission of evidence tending to show the general reputation of defendant\u2019s premises was also error. Defendant was not charged with maintaining a nuisance, G.S. 19-1. Therefore, G.S. 19-3, which makes evidence of the general reputation of the place admissible for the purpose of proving the nuisance is not applicable. Since defendant neither testified as a- witness nor offered evidence of his good character, the State was precluded from showing his bad character for any purpose whatever. State v. McLamb, 235 N.C. 251, 69 S.E. 2d 537; State v. Nance, 195 N.C. 47, 141 S.E. 468; Stansbury, op. cit. supra, \u00a7\u00a7 104, 108. A fortiori, evidence as to the bad reputation of defendant\u2019s premises was inadmissible here.\nIn State v. Springs, 184 N.C. 768, 114 S.E. 851, defendant was charged with the unlawful possession of spirituous liquors for the purpose of sale. At the trial he testified in his own behalf and also offered evidence tending to show his good character. Over objection, the State was allowed to offer testimony which \u201cwas received as substantive evidence, that Springs\u2019 place had a bad reputation for whiskey selling.\u201d Id. at 769, 114 S.E. at 852. On appeal, defendant was awarded a new trial because he had, \u201cin effect, been erroneously convicted by means of hearsay evidence. . . .\u201d Id. at 772, 114 S.E. at 853. The Court said that in the prosecution of offenses against the prohibition laws \u201cevidence of general reputation of the place where the specific offense is alleged to have been committed [is inadmissible], unless ... it has been made competent by some valid statute. . . .\u201d Id. at 771, 114 S.E. at 852. It specifically disapproved State v. McNeill, 182 N.C. 855, 109 S.E. 84, in which such evidence had been admitted for the purpose of corroborating the State\u2019s evidence that the sheriff had found liquor on defendant\u2019s premises.\nIn State v. Turpin, 203 N.C. 11, 164 S.E. 926, a character witness for defendant testified that the reputation of her filling station \u201chas been liquor.\u201d Stacy, C. J., said: \u201cThe evidence respecting the reputation of defendant\u2019s garage for selling liquor was hearsay and should have been excluded.\u201d Id. at 12, 164 S.E. at 926. In Annot., 68 A.L.R. 2d 1300, 1302, North Carolina is included among those jurisdictions which hold \u201cthat evidence of the general reputation of defendant\u2019s premises is inadmissible in prosecutions for liquor law violations involving a charge of unlawful sale or possession of intoxicants at particular premises.\u201d\nDefendant\u2019s contention that the search of his premises was illegal because the officer conducting the search did not make the affidavit upon which the warrant was issued is untenable. State v. Shermer, 216 N.C. 719, 6 S.E. 2d 529.\nFor the errors designated, however, it is ordered that there be a\nNew trial.",
        "type": "majority",
        "author": "Shaep, J."
      }
    ],
    "attorneys": [
      "T. W. Bruton, Attorney General, Charles W. Barbee, Jr., Assistant Attorney General for the State.",
      "J. Nat Hamrick for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE v. TOMMY TESSNEAR.\n(Filed 22 September, 1965.)\n1. Intoxicating Liquor \u00a7 13a\u2014\nIn this prosecution for possession of nontaxpaid whiskey and for possession thereof for the purpose of sale, the State\u2019s evidence held sufficient to overrule defendant\u2019s motions of nonsuit.\n2. Criminal Law \u00a7 101\u2014\nPrima facie evidence justifies but does not compel a finding of the ultimate fact to be proved, and in a criminal case such evidence coupled with other evidence must establish defendant\u2019s guilt beyond a reasonable doubt.\n3. Intoxicating Liquor \u00a7 10\u2014\nG.S. 18-11 authorizes but does not compel a jury to infer that the possessor of nontaxpaid whiskey possessed the whiskey for the purpose of sale.\n4. Intoxicating Liquor \u00a7 15; Criminal Law \u00a7 108\u2014\nIn a prosecution for possession and possession for the purpose of sale of intoxicating liquor, an instruction that possession of any quantity of non-taxpaid whiskey \u201craises a deep presumption\u201d that the possession was for the purpose of sale held prejudicial error as an expression of opinion in violation of G.S. 1-180.\n5. Criminal Law \u00a7 80\u2014\nWhere defendant does not testify or offer evidence of his good character, the State is precluded from showing his bad character for any purpose.\n6. Same; Intoxicating Liquor \u00a7 12\u2014\nIn a prosecution for possession and possession for the purpose of sale of intoxicating liquor, evidence that defendant\u2019s house had the reputation of having whiskey for sale is incompetent as hearsay.\n7. Searches and Seizures \u00a7 2\u2014\nIt is not required that the officer using a search warrant be the one who made the affidavit.\nAppeal by defendant from Clarkson, J., March 1965 Session of RUTHERFORD.\nDefendant was first tried in the Recorder\u2019s Court of Rutherford County upon a warrant which charged him (1) with the possession of nontaxpaid whiskey in violation of G.S. 18-48, and (2) with the possession of nontaxpaid liquor for the purpose of sale in violation of G.S. 18-50. From conviction and judgment in the Recorder\u2019s Court defendant appealed to the Superior Court where he was tried de novo. The State\u2019s evidence tends to show:\nAbout 2:30 p.m. on December 24, 1964, the Sheriff of Rutherford County and three of his deputies went to defendant\u2019s home with a search warrant. Defendant was not there when they arrived but appeared in about ten minutes. When the sheriff told Mrs. Tessnear that he had a search warrant she slammed the door and ran toward the sink. He knocked the door open and from the kitchen sink retrieved two plastic containers. One contained half a gallon of nontaxpaid whiskey; the other, a quart. \u201cShot glasses\u201d were in a cabinet over the sink. Six or eight people were sitting around the kitchen table drinking. Around the home the officers found sacks and boxes containing 50-60 liquor bottles. There were also numerous jars and plastic jugs. In a bedroom the officers found \u201ca lady standing up against the dresser trying to hide three pints of taxpaid whiskey.\u201d From time to time during the preceding summer the officers had watched defendant\u2019s premises. They had observed much traffic in and out of the house, and had seen and \u201cpicked up\u201d numerous drunks who had come from there. Taxis brought people who went in without packages and came out in 5-8 minutes carrying paper bags.\nOver defendant\u2019s objection, each of the State\u2019s witnesses testified that for at least six years defendant\u2019s house had had the reputation \u201cof having whiskey for sale.\u201d The admission of this evidence is the basis of defendant\u2019s assignment of error No. 2. Defendant himself did not testify. His wife\u2019s sister-in-law, one of the women present when the officers searched defendant\u2019s premises, testified in his behalf that the nontaxpaid whiskey they found in the sink belonged to her; that she had just taken it from her husband at a turkey shoot and had brought it into the house only five minutes before the sheriff arrived.\nIn his charge the judge told the jury that the possession of any quantity of nontaxpaid whiskey is unlawful and \u201craises a deep presumption that it was had for the purpose of sale.\u201d Defendant assigns the quoted portion as error.\nThe jury returned a verdict of \u201cguilty to both charges.\u201d From a judgment of imprisonment, defendant appeals.\nT. W. Bruton, Attorney General, Charles W. Barbee, Jr., Assistant Attorney General for the State.\nJ. Nat Hamrick for defendant appellant."
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