State v. Bostic , 242 N.C. 639 ( 1955 )

89 S.E.2d 261 (1955) 242 N.C. 639

STATE
v.
Peb BOSTIC, alias F. O. Bostic.

No. 147.

Supreme Court of North Carolina.

September 28, 1955.

Max L. Childers, Hugh W. Johnston, Gastonia, for defendant appellant.

Wm. Rodman, Jr., Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

DEVIN, Justice.

The defendant noted exception in several instances to the ruling of the trial judge with respect to the testimony offered, and has brought these forward in his assignments of error. We have examined each of these exceptions and conclude that none of them can be sustained. Likewise defendant's motion for judgment as of nonsuit was properly denied.

Defendant assigns error in the court's charge to the jury in several aspects, set out more fully in his brief. We note, however, from the record that the particular portions of the charge to which the defendant desires to except, and as to which he assigns error, are not definitely pointed out, save that at the end or in the middle of a paragraph appears in parenthesis the word "Exception," while the assignment of error merely sets forth, e. g., "that the court erred in improperly stating the nature of the charges against the defendant." Objectionable instructions are not "pointed out with the definiteness and certainty required by Rule 19(3)." State v. Norris, 242 N.C. 47, 86 S.E.2d 916; State v. Gordon, 241 N.C. 356, 85 S.E.2d 322.

Nevertheless we have examined the entire charge of the court and find that in no respect was it unfair or prejudicial to the defendant.

The defendant complains that the court's instructions as to the different counts in the two bills were confusing to the jury, but we think the court clearly pointed out the two charges in each bill which he was submitting for their decision. These were possession of taxpaid whiskey for the purpose of sale, and selling taxpaid whiskey. The court sufficiently protected the rights of the defendant by charging that the jury could return verdicts of guilty or not guilty as to each of these counts, as they should find the facts from the evidence, the burden being on the State to satisfy them in each instance of the guilt of the defendant beyond a reasonable doubt. True, the court inadvertently referred to the bills as charging possession and sale of non-taxpaid whiskey, instead of taxpaid whiskey, but immediately corrected himself and stated the charge accurately. As the possession of whiskey for the purpose of sale and the sale thereof, whether taxpaid or untaxpaid, is unlawful under the statutes except as authorized by the Alcoholic Beverage Control acts, no harm resulted to the defendant.

In none of the particulars called to our attention do we perceive any prejudicial error of which the defendant can justly complain.

The exception noted by the defendant to the action of the court in changing the sentence in the second case after the defendant had given notice of appeal cannot avail the defendant on this appeal. The record does not sustain the suggestion that the defendant was being penalized for announcing his intention to appeal, as was the case in State v. Patton, 221 N.C. 117, 19 S.E.2d 142. On the contrary the refusal by the defendant to consent to the terms rendered the modification necessary and appropriate. State v. Cagle, 241 N.C. 134, 84 S.E.2d 649.

In the trial and judgment we find

No error.

WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.