State v. Taylor , 236 N.C. 130 ( 1952 )

71 S.E.2d 924 (1952) 236 N.C. 130

STATE
v.
TAYLOR.

No. 722.

Supreme Court of North Carolina.

August 22, 1952.

Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.

Higgins & McMichael, and Richmond Rucker, Winston-Salem, for defendant appellant.

VALENTINE, Justice.

Defendant based his motion for judgment as of nonsuit upon the theory that there was a fatal variance between the allegations in the bill of indictment and the State's evidence. He strongly argues that the bill of indictment was based upon the Turlington Act, G.S. § 18-1 et seq. and that the proof tended to support a violation of the State Alcoholic Beverage Control Act, G.S. § 18-36 et seq. The bill of indictment makes no reference to any statute. Defendant urges in support of his contention that the sale of liquor was made to an undercover investigator of the State Alcoholic Beverage Control Board whose duties are confined to the enforcement of the statutory law under which he operates. This argument overlooks the fact that the evidence of a violation of the law is the important thing and not the official status of the witness giving the evidence. As a matter of fact, one who had no connection with any agency of the State could have testified that an unlawful sale of liquor was made and such testimony, unimpeached, would be sufficient to justify a conviction.

In the present case, the State based no part of its case upon a presumption, but upon the physical facts of the transportation, delivery, possession and sale of the intoxicated liquor. Matters relating to the position of the witness with respect to the governmental agency are without effect, except for the purpose of attacking the veracity of the witness. All the evidence tended to show that the defendant on two separate occasions, after 9 o'clock at night, possessed, transported and sold a fifth of tax paid liquor. This established the illegality of the sale and was abundantly sufficient to take the case to the jury and support a verdict. State v. Clark, 234 N.C. 192, 66 S.E.2d 669; State v. Marsh, 234 N.C. 101, 66 S.E.2d 684; State v. Ellers, 234 N.C. 42, 65 S.E.2d 503.

It is and has been, since the enactment of the Turlington Act, a violation of the law in North Carolina to transport, sell, possess, and possess for the purpose of sale intoxicating liquor, except as specified in the Alcoholic Beverage Control Act. The bill of indictment unquestionably is sufficient to support a conviction under the evidence offered by the State. State v. Davis, 214 N.C. 787, 1 S.E.2d 104.

The unlawful liquor transactions engaged in by the defendant under the testimony of the State upon the night in question is condemned both by the Turlington Act and by the Alcoholic Beverage Control Act. State v. Barnhardt, 230 N.C. 223, 52 S.E.2d 904; State v. Wilson, 277 N.C. 43, 40 S.E.2d 449; State v. Carpenter, 215 N.C. 635, 3 S.E.2d 34; State v. Davis, supra; State v. Epps, 213 N.C. 709, 197 S.E. 580; State v. Langley, 209 N.C. 178, 183 S.E. 526. As a matter of fact, all undercover agents of the State Alcoholic Beverage Control Board are authorized "To see that all the laws relating to the sale and control of alcoholic beverages are observed and performed." G.S. § 18-39.

This statutory law furnished full authorization for the procedure used by the State's witness and placed upon him the duty of enforcing the provisions of both the Turlington Act and the Alcoholic Beverage Control Act. The State's evidence was clear, unambiguous and susceptible of only one construction. Therefore, it was not error for the court to charge the jury that if it found beyond a reasonable doubt that the evidence offered by the State was true, the burden being upon the State to so satisfy them, then it would be their duty to return a verdict of guilty as charged; otherwise, to return a verdict of not guilty. State v. Baker, 229 N.C. 73, 48 S.E.2d 61; State v. Dickens, 215 N.C. 303, 1 S.E.2d 837; State v. Langley, supra.

The solicitor has the duty of developing the case for the State and he may call any or all of the witnesses subpoenaed for the prosecution, but his failure to call a particular witness does not constitute reversible error. State v. Harris, 166 N.C. 243, 80 S.E. 1067; State v. Smallwood, 75 N.C. 104.

The defendant strongly argues that the court committed error in that portion of the charge which relates to the evidence of the undercover agent by failing to instruct the jury to scrutinize his testimony as that of an interested or biased witness. The defendant made no request in writing for special instructions on this point. His oral request made at the conclusion of the charge was too late. State v. Hicks, 229 N.C. 345, 49 S.E.2d 639; State v. Spencer, 225 N.C. 608, 35 S.E.2d 887; State v. Spillman, 210 N.C. 271, 186 S.E. 322. However, the presiding judge substantially complied with this belated request by saying to the jury, "Yes, sir, gentlemen, you may scrutinize his credibility; but if you find what he said is true, and beyond a reasonable doubt, it would be your duty to return a verdict of: ``Guilty as charged.'" State v. Love, 229 N.C. 99, 47 S.E.2d 712.

The use of the word "may" instead of "should" in this excerpt from the charge is not prejudicial. Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215; Felton v. Felton, 213 N.C. 194, 195 S.E. 533; Rector v. Rector, 186 N.C. 618, 120 S.E. 195; Jones v. Madison County Commissioners, 137 N.C. 579, 50 S.E. 291; Falls of Neuse Manufacturing Co. v. Brower, 105 N.C. 440, 11 S.E. 313; Johnston v. Pate, 95 N.C. 68, 70; Pelletier v. Saunders, 67 N.C. 261.

A careful examination of the authorities relied upon by the appellant discloses no principle of law which militates against the position here stated. On the whole record, it appears that the defendant had a fair trial and that there is no reversible error.

No error.