State v. Killian , 178 N.C. 753 ( 1919 )

Bkown, J.

The defendant is a merchant at Mortimer, N. C., and in consequence of information received by the sheriff of Caldwell County the sheriff went to Mortimer to capture a blockade distillery that he had learned was in operation near said village. Upon arrival at Mortimer, the sheriff started to find and capture the distillery that had been previously reported to him. When he had gotten some distance from defendant’s store he heard a gun fire (though not at him), and he looked in the direction of the sound and saw the defendant unbreeching a shotgun, and then saw him reload the gun and fire again up in the air. This was practically all the evidence against the defendant. The sheriff further swore that he went direct to the still place and found no one there. The still was gone, but there was a fire in the furnace. The defendant was at his store when the sheriff arrived at Mortimer, and that he never saw any one at the still — never saw the defendant closer than one-quarter of a mile to the still. These statements were substantially corroborated by J. 0. Eller, who was tbe sberiff. Tbe State rested its case and tbe defendant moved tbe court to dismiss tbe action as of nonsuit, wbicb was declined.

We tbink tbe motion to dismiss was properly overruled. We think there is some evidence sufficient to go to tbe jury tbat tbe defendant knew of tbe existence of tbe still and fired a gun in order to give warning to tbe distillers. While tbe evidence is not very strong, we tbink tbe jury may infer from all tbe surroundings as to what was tbe purpose of tbe defendant in firing tbe gun. If bis purpose was to aid and abet tbe distillers and to enable them to escape, tbe defendant would be an accessory and equally guilty with tbe principals.

The court instructed tbe jury as follows: “Gentlemen of tbe jury: It does not mean tbat tbe State is required to satisfy you beyond a reasonable doubt tbat tbe defendant was tbat morning making tbat particular run, but if be bad been manufacturing .liquor in tbe State of North Carolina at any time in tbe last few years be would be guilty.”

Tbe defendant was indicted for manufacture of liquor and operating a still near Mortimer, and tbe evidence is confined exclusively to tbe particular occasion described by tbe witnesses. Tbe only evidence offered by tbe State was tbat be fired bis gun to give warning on this particular occasion. There is not tbe slightest evidence tending to show defendant’s connection with any other violation of.the liquor laws, and we tbink bis Honor was in error in charging tbe jury as be did.

His Honor further instructed tbe jury, “Tbat if tbe State has satisfied you tbat this man was aiding and abetting, if not himself manufacturing, it would be your duty to convict.”

In tbat charge bis Honor evidently was inadvertent to tbe well-settled rule of tbe criminal law, tbat before they can convict of a crime they must be satisfied beyond a reasonable doubt.

New trial.

Walkeb, J., concurs in result.