State v. McLamb , 235 N.C. 251 ( 1952 )

69 S.E.2d 537 (1952) 235 N.C. 251

STATE
v.
McLAMB.

No. 218.

Supreme Court of North Carolina.

March 17, 1952.

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Charles G. Powell, Jr., Member of Staff, Raleigh, for the State.

Canaday & Canaday and J. Roscoe Barefoot, all of Benson, for defendant appellant.

WINBORNE, Justice.

Defendant assigns as error several rulings of the trial court upon which he formulates questions of law involved. We treat them seriatim.

1. Exceptions were taken to the admission of evidence secured by the officers under the search warrant. It is contended that the search warrant is defective for that the justice of the peace, who issued it, failed to comply with the requisites of G.S. § 15-27, and amendments thereto, in that the procuring officer was not required to furnish sufficient facts to show probable cause for the issuance of such warrant. Be that as it may, it appears here that the provisions of G.S. § 18-13 are applicable rather than G.S. § 15-27. G.S. § 18-13 provides that "upon * * * information furnished under oath by an officer charged with the execution of the law, before a justice of the peace, * * * that he has reason to believe that any person has in his possession, at a place or places specified, liquor for the purpose of sale, a warrant shall be issued commanding the officer to whom it is directed to search the place or places described in such * * * information; and if such liquor be found in any such place or places, to seize and take into his custody all such liquor, and to seize and take into his custody all glasses, bottles, jugs, pumps, bars, or other equipment used in the business of selling intoxicating liquor which may be found at such place or places, and to keep the same subject to the order of the court. * * *"

Testing the affidavit of the officer here in question by the provisions of this statute, G.S. § 18-13, it appears that the matters contained in the affidavit are sufficient to justify the justice of the peace to issue the search warrant. Hence, in the admission of the evidence to which such exceptions relate, error is not made to appear.

2. Defendant next stresses for error the denial of his motions, aptly made, for judgment as in case of nonsuit. G.S. § 1-183.

In passing upon this question, it is appropriate to note that in Article 1 of Chapter 18 of the General Statutes of North Carolina, pertaining to the regulation of intoxicating liquors, G.S. § 18-4, it is provided that "* * * It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this article * *." See State v. Jaynes, 198 N.C. 728, 153 S.E. 410; State v. Webb, 233 N.C. 382, 64 S.E.2d 268.

Defendant is charged with violating this statute as it pertains to property designed for the manufacture of liquor, etc. His plea of not guilty puts in issue every element of the offense charged. State v. Meyers, 190 N.C. 239, 129 S.E. 600; State v. Harvey, 228 N.C. 62, 44 S.E.2d 472; State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349; State v. Webb, supra.

Possession, within the meaning of the above statute, may be either actual or constructive. State v. Lee, 164 N.C. 533, 80 S.E. 405; State v. Meyers, supra; State v. Penry, 220 N.C. 248, 17 S.E.2d 4; State v. Webb, supra.

In the Meyers case, supra [190 N.C. 239, 129 S.E. 602], it is stated: "If the liquor was within the power of the defendant, in such a sense that he could and did command its use, the possession was as complete within the meaning of the statute as if his possession had been actual." And in the Webb case, supra, it is said that this principle applies alike to the possession of property designed for the manufacture of intoxicating liquor within the meaning of the statute. G.S. § 18-4.

Moreover, in the Jaynes case, supra, this statute, then 3 C.S. § 3411(d), and under consideration, used the word "designated", and this Court held that this word was evidently intended for "designed", and might be so regarded, and, hence, the charge against the defendant was "having in his possession certain utensils designed and intended for use in the unlawful manufacture of intoxicating liquor"—and that "the fact that they had not been completely assembled or arranged for the purpose would seem to make no difference under the language of the statute." Also it is noted that now the word "designated" as it then appeared in the statute has been deleted, and the word "designed" substituted in lieu of it.

The word "designed" is defined in Webster's New International Dictionary, as "done by design or purposely," that is, "opposed to accidental or inadvertent." Hence as used in the statute, G.S. § 18-4, the phrase "property designed for the manufacture of liquor" means property "fashioned according to a plan" (Webster) for that purpose.

In the light of the provisions of the statute, as interpreted by these decisions of the Court, in passing upon the question now being considered, it must be borne in mind that the verdict of the jury is that defendant is not guilty as to the ownership and operation of the three stills described in the warrant, but that he is "guilty as to the possession of the materials and things found at the house for use in manufacturing liquors."

Thus in the light of the verdict the question now is whether the evidence, taken most favorably to the State, as is done in considering demurrer to the evidence, G.S. § 1-183, is sufficient to take the case to the jury in respect of the charge to which the verdict of guilty relates. When so considered, the evidence appears to be sufficient, and it is held that it is sufficient to take the case to the jury—particularly the testimony relating to the barrel, referred to as the container barrel with holes in it. The testimony is that the officers found it "at the barn" on defendant's premises, and that a barrel of this type, in the manufacture of whiskey, is "known as a worm barrel or condenser barrel."

3. The next question is based on exceptions to the rulings of the trial court in respect to the remarks of the solicitor, hereinabove quoted, made in the course of his argument to the jury. The challenge so made is well founded.

The record and case on appeal show that defendant's wife and three other women, and several men testified in his behalf, but that he did not testify. Hence to say that he was "hiding behind his wife's coat tail" is tantamount to comment on his failure to testify, which is not permitted by the statute, G.S. § 8-54. This statute declares that in the trial of all indictments, or other proceedings, against a person charged with the commission of a crime, the person so charged is, at his own request, but not otherwise, a competent witness, and that his failure to make such request shall not create any presumption against him. And the decisions of this Court have uniformly interpreted its meaning as denying the right of counsel to comment on the failure of a person so charged to testify. Among authoritative decisions are: State v. Humphrey, 186 N.C. 533, 120 S.E. 85; State v. Tucker, 190 N.C. 708, 130 S.E. 720; State v. Bovender, 233 N.C. 683, 65 S.E.2d 323, and cases cited.

Moreover, unless a defendant in a criminal prosecution testifies as a witness, thereby subjecting himself to impeachment, or produces evidence of his good character to repel the charge of crime, the State may not show his bad character for any purpose. See Stansbury on North Carolina Evidence—Section 104; also State v. Nance, 195 N.C. 47, 141 S.E. 468; State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606.

In the Humphrey case, supra [186 N.C. 533, 120 S.E. 87], it appeared "that on the trial the solicitor was allowed over defendant's objection to make adverse comment on the fact that defendant did not take the stand as a witness in his own behalf, and also as to the bad character of the defendant as a substantive fact tending to show guilt, when defendant had not himself put his character in evidence on the issue," the Court declared that both objections must be sustained under the statute, then C.S. § 1799, now G.S. § 8-54, and decisions appertaining to the subject.

And in the Bovender case, supra [233 N.C. 683, 65 S.E.2d 329], Chief Justice Devin, then an Associate Justice, reviews the authorities. There the presiding judge declined to permit defendant's counsel to state to the jury that "the law says no man has to take the witness stand." The ruling of the court was sustained.

Moreover, in State v. Howley, 220 N.C. 113, 16 S.E.2d 705, it is held that it is the duty of the presiding judge to interfere when the remarks of counsel are not warranted by the evidence and are calculated to mislead or prejudice the jury.

In the present case, the court overruled the objections, and inadvertently ruled that it was "a question for the jury." True, the court, later, in charging the jury adverted to the right of defendant not to testify, but, in doing so, no reference is made to the remarks of the solicitor on which the above ruling was made.

Other matters to which exceptions were taken need not now be considered since for error pointed out there must be a new trial.

However, in this Court defendant moves in arrest of judgment for that the warrant, upon its face, fails to sufficiently charge a crime under G.S. § 18-4, in that it fails to allege that defendant "possessed property designed for the manufacture of liquor intended for use in violating this article, or which has been so used." While the form of the charge as set out in the affidavit on which the warrant issued, and in the amendment thereto, is not here approved, this Court holds that it is not wholly insufficient. Hence the motion in arrest of judgment is denied.

But since the case goes back for a new trial, it may be deemed expedient to amend the warrant to more completely follow the statute G.S. § 18-4.

Let there be a

New trial.