State v. . Simons , 178 N.C. 679 ( 1919 )

The defendant was convicted on a charge that he "Did unlawfully and willfully have in his possession illicit whiskey, three gallons, with the intent to sell, and did unlawfully and willfully receive at one time, and in one package, more than one quart of intoxicating liquor, contrary to law." Verdict and sentence. Appeal by defendant. The evidence was that a constable, with a search warrant (680) for whiskey, went to defendant's house; that he read the warrant to the defendant, who also read it. The defendant asked the officer to go in the house with him; they went through a narrow passage, to a back room, when the defendant reached up and grabbed his pistol from a shelf, but the officer was too quick for him, and presenting his own pistol, made the defendant put his down. The defendant then said that he did not have but one quart of whiskey, and he would be damned if any man was going to search his house or have it. The officer, however, did search his house. The defendant pulled out one quart from behind the bureau, and after some conversation he also handed out three gallons of corn whiskey. The other officer, who was with the constable, gave the same evidence. The defendant did not put on any testimony, and the above evidence was not contradicted. The statute, Laws 1913, ch. 44, sec. 2, makes "the possession of more than one gallon of spirituous liquors, at any one time, whether in one or more places, prima facie evidence of having it for the purpose of sale."

The defendant makes no exception to the charge, and therefore it is presumed that the judge charged in accordance with the law. The defendant put on no evidence whatever to contradict the testimony that he had three gallons and a quart, though he had denied having any, and he attempted to shoot the officer.

The sole exception is to the testimony of the sheriff that in August, 1919, he was at the defendant's house, and "found a new still almost completed, on which the defendant was working, and he had nearly enough copper for another one." The exception is upon the ground that, as the whiskey had been found in possession of the defendant on 2 June, this testimony was "irrelevant and incompetent." The evidence of the finding of the three gallons and a quart being uncontradicted, the jury found in accordance with the prima facie presumption, corroborated, as it was, by defendant's denial and his attempt to shoot. The evidence excepted to, at the most, was unnecessary, but not incompetent.

There are offenses which are committed in sudden temper, or under violent provocation, or by the impulse of passion. As to these, the only competent evidence is what took place at the time. S. v.Norton, 82 N.C. 630. But the crime of illicit dealing in intoxicating liquor is in the same class with larceny, counterfeiting, forgery, obtaining money under false pretenses, and burglary, which are all committed with deliberation, in defiance of law, and (681) for the ignoble motive of making profit thereby. In all such cases it is competent to prove intent by showing matters of like nature, before or after the offense. If one is found in possession of counterfeit money it would be competent to show that in a reasonable time thereafter he was working on an apparatus for counterfeiting, or had passed other counterfeit notes, even though it should fix him with guilt of another offense. S. v. Twitty, 9 N.C. 248. And the same is true as to the counterfeiting coin. If the charge is forgery, evidence is competent that the defendant was found not long afterwards in possession of other forged notes, or had passed other forged notes, or was in possession of chemicals and other apparatus used for that purpose. 2 Whart. Cr. Law (11th ed.), sec. 920, note 7. Or if there was evidence that the defendant was found at night in a dwelling-house with burglary tools, the fact that he was found not long afterwards fashioning and shaping such tools would be competent evidence.

The question when evidence of other crimes is competent is discussed inPeople v. Molineaux, 168 N.Y. 264, which is reprinted with an admirable analytical table and very full notes (62 L.R.A. 193-357), which leaves nothing to be added. The subject is fully discussed in a line of decisions in this State. In S. v. Murphy, 84 N.C. 742, it is held: "Evidence of a `collateral offense,' of the same character and connected with that charged in an indictment, and tending to prove the guilty knowledge of the defendant, when that is an essential element of the crime, is admissible." This is a very clear discussion by Judge Ashe as to the instances in which such evidence is competent to show the quo animo, intent, design, guilty knowledge, and scienter. That case has been cited in many cases with approval, among them the following:

In S. v. Parish, 104 N.C. 692: "The rule is that testimony as to other similar offenses may be admissible as evidence to establish a particular charge where the intent is the essence of the offense, and such testimony tends to show the intent or guilty knowledge. S. v. Murphy,84 N.C. 742." In S. v. Weaver, ib., 761, it is said: "This Court has gone further, and allowed evidence of a different offense of the same character and not connected with that charged in the indictment, in order to show guilty knowledge where the intent is of the essence of that charge," citing the above cases. In S. v. Walton, 114 N.C. 783, McRae, J., says: "In the trial of an indictment for obtaining money under false pretense it is competent, in order to show the scienter and intent, to prove other similar transactions by the defendant."

In S. v. Graham, 121 N.C. 623, it is held that when the evidence tends to prove guilty knowledge of the defendant, the quo animo, the intent or design, evidence of other acts of the defendant are competent, as, for instance, passing counterfeit money of (682) like kind; sending a threatening letter, and the like. In the latter case it is said: "Prior and subsequent letters to the same purpose are competent in order to show the intent and meaning of the particular letter in question." In S. v. Adams, 138 N.C. 693, Walker, J., says: "True it is that evidence as to one offense is not admissible against a defendant to prove that he is also guilty of another and distinct crime, the two having no relation to or connection with each other. But there are well defined exceptions to this rule. Proof of another offense is competent to show identity, intent, or scienter, and for other purposes," citing S. v. Murphy, supra. The same is stated by Connor, J., in Johnson v. R. R., 140 N.C. 586.

In S. v. Leak, 156 N.C. 646, Allen, J., says: "It was competent for the State to prove that the defendant placed his hands on the prosecutrix at another time on the day of the assault, as evidence of another assault of which the defendant could have been convicted under the indictment, and as tending to prove the animus and intent of the defendant," citing S. v.Murphy, S. v. Parish, and S. v. Adams, supra. In the very late case, Grayv. Cartwright, 174 N.C. 49, Walker, J., held: "In an action to recover damages for malicious prosecution of a criminal action for the larceny of a cow, evidence is competent to show that the defendant in the criminal action, and the plaintiff in the civil one, had taken, at other times, cattle to his premises, under similar circumstances, when relevant to his criminal intent in the matter under consideration in the present action."S. v. Murphy, 84 N.C. 742; S. v. Walton, 114 N.C. 783, being cited and approved.

In S. v. Bush, 177 N.C. 551, the Court, speaking of the illicit sale of whiskey or possession of it for purposes of sale, said that like the crime of larceny, it is "generally done furtively, and direct evidence is not easily had. It is usually an inference to be drawn by the jury from a combination of circumstances." The evidence in this case of the denial by the defendant of possession, his attempt to shoot the officer, and his being found later making a still are all competent in support of the presumption, raised by his possession of liquor, that he had the liquor in his possession for the illicit purpose of sale.

If a person had liquor in his possession for the purposes of sale he is guilty whether he makes a sale or not. S. v. Davis, 168 N.C. 144.

No error.

Cited: S. v. Beam, 179 N.C. 769; S. v. Crouse, 182 N.C. 837; S. v.Pannil, 182 N.C. 840; S. v. Mills, 184 N.C. 698; S. v. Miller, 189 N.C. 696;S. v. Dail, 191 N.C. 232; S. v. Hardy, 209 N.C. 85; S. v. Batts,210 N.C. 660; S. v. Flowers, 211 N.C. 724; S. v. Smoak, 213 N.C. 91; S. v.Payne, 213 N.C. 724; S. v. Godwin, 216 N.C. 61; S. v. Wilson, 217 N.C. 127;S. v. Colson, 222 N.C. 29; S. v. Harris, 223 N.C. 701; S. v. Biggs,224 N.C. 726; S. v. Choate, 228 N.C. 498; S. v. Fowler, 230 N.C. 473; S.v. Summerlin, 232 N.C. 338; S. v. McClain, 240 N.C. 175; S. v. Bell,249 N.C. 382; S. v. Christopher, 258 N.C. 253.

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