State v. Chavis , 232 N.C. 83 ( 1950 )

59 S.E.2d 348 (1950) 232 N.C. 83

STATE
v.
CHAVIS.

No. 578.

Supreme Court of North Carolina.

May 10, 1950.

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., Walter F. Brinkley, Member of Staff, Lexington, for the State.

Gilbert Medlin, Jennings G. King, Laurinburg, for defendant, appellant.

SEAWELL, Justice.

We can see but one arguable point involved in appellant's challenge to the trial in the court below. The objection to the judgment brings up for consideration the question whether the judge, upon a general verdict applying to all counts of the case, can assign separate punishment for the count of possession of intoxicating liquor and that of transportation of the same liquor. The theory upon which the exception is based is that it is not competent to find the defendant guilty of two offenses and fix separate punishments therefor when the facts constituting the two purported crimes are identical, the possession being physically necessary to the act of transportation.

But neither the logic nor the law is as simple as that.

Two things will help us in our thinking: we are not dealing with common law crimes but with statutory offenses; and not with a single act with two criminal labels but with component transactions violative of distinct statutory provisions denouncing them as crimes. Neither in fact nor law are they the same, State v. Midgett, 214 N.C. 107, 198 S.E. 613. They are not related as different degrees or major and minor parts of the same crime and the doctrine of merger does not apply. The incidental fact that possession goes with the transportation is not significant in law as defeating the legislative right to ban both or either. When the distinction between the offenses is considered in the light of their purpose, vastly different social implications are involved and the impact of the crime of greater magnitude on the attempted suppression of the liquor traffic is sufficient to preserve the legislative distinction and intent in denouncing each as a separate punishable offense.

No doubt many authorities can be arrayed on either side of the question under consideration—many of them, however, wanting in persuasive authority because of the difference in local laws. However, the decided weight of authority supports the view that in cases of factual similarity with the one under review the power of the Legislature, when it so intends, to make punishable as a distinct violation of statute law each offense denounced by the statute, although occurring in the same transaction, must be given effect. 22 C.J.S., Criminal Law, § 9, and authorities assembled in notes 39, 40, and 42; 15 A.J.Criminal Law, sec. 389; Ebeling v. Morgan, 237 U.S. 625, 35 S. Ct. 710, 59 L. Ed. 1151; Roark v. U. S., 8 Cir., 17 F.2d 570, 51 A.L.R. 87; Albrecht v. United States, 273 U.S. 1, 47 S. Ct. 250, 71 L. Ed. 505; State v. Midgett, supra.

The case involves violations of G.S. § 18-2 which came into our law through the Turlington Act in ipsissimis verbis from the National Prohibition Act, 27 U.S.C.A., and the interpretation we have placed upon the law here is that given it by many of the Federal courts.

In Massey v. U. S., 8 Cir., 281 F. 293, 296, the defendant transported liquor in his car and had carried it into his house when arrested. On appeal from a conviction of illegal transportation and illegal possession, the Court said: "The National Prohibition Act penalizes the illegal possession [of liquor], as well as the illegal transportation, of such liquor. Transportation involves elements of carriage or removal * * * that are not involved in mere possession. Separate acts, though parts of a continuous transaction may be made separate crimes by the legislative power."

In Bell v. U. S., 5 Cir., 285 F. 145, 147, certiorari denied 262 U.S. 744, 43 S. Ct. 521, 67 L. Ed. 1211, the defendant drove up in his car and Federal agents searched and found liquor in the car. In holding invalid the defendant's contention that he could not be convicted for illegal transportation and possession in that the transportation included possession, the Court held: A person may be in unlawful possession of liquor and never transport it. If he also transports it, that is a separate offense and each is a violation of the National Prohibition Act, and the court could properly impose punishment on each count.

In Earl v. U. S., 9 Cir., 4 F.2d 532, upon the same facts a similar decision was rendered in which the Bell and Massy cases were cited. In Loomis v. U. S., 9 Cir., 61 F.2d 653, and Aldridge v. U. S., 10 Cir., 67 F.2d 956, it was held that transportation and possession are separate and distinct offenses even though they grow out of the same transaction, and sentence could be imposed on both counts. See also, State v. Melerine, 158 La. 511, 104 So. 308; Haarmann v. State, 111 Neb. 790, 197 N.W. 947; State v. Mooers, 129 Me. 364, 152 A. 265; Allen v. State, 24 Ohio App. 85, 155 N.E. 811; People v. Grabiec, 210 Mich. 559, 178 N.W. 55.

In Albrecht v. United States, supra, Justice Brandeis, writing the opinion of the Court, says [273 U.S. 1, 47 S. Ct. 253]: "The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offenses. One may obviously possess without selling, and one may sell and cause to be delivered a thing of which he has never had possession, or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offense. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction. The precise question does not appear to have been discussed in either this or a lower federal court in connection with the National Prohibition Act; but the general principle is well established. Compare Burton v. United States, 202 U.S. 344, 377, 26 S. Ct. 688, 50 L. Ed. 1057, [1069], 6 Ann. Cas. 362; Gavieres v. United States, 220 U.S. 338, 31 S. Ct. 421, 55 L. Ed. 489; Morgan v. Devine, 237 U.S. 632, 35 S. Ct. 712, 59 L. Ed. 1153."

The case of State v. Midgett, supra, deals with the question before us in considering the matter of double jeopardy or autrefois acquit in a way which is an adequate test of double punishment in this case. It is analytical and thorough and we refer to the text and copious citations of authority.

We regard State v. Gordon, 224 N. C. 304, 30 S.E.2d 43, as a precedent, although similar objection to the judgment was not made. In this case the defendant was charged with violating the prohibition laws by a warrant containing the same three counts as here: unlawful transportation, unlawful possession, and unlawful possession for the purpose of sale. The only evidence of possession was during the course of transportation; but the judgment upon the verdict of guilty was a 12-month's sentence in each of the three counts.

We find no error in the record.

No error.