In Re State v. . Gordon

DEVIN, J., concurring.

BARNHILL, J., concurring.

SEAWELL, J., dissenting. Intervention by common carrier, Atlantic States Motor Lines, Inc., to obtain possession of whiskey seized in the case of State v. John Gordon,224 N.C. 304, 30 S.E.2d 43.

At the time of his arrest by the officers of Wake County on 10 July, 1943, John Gordon was driving a truck which had been leased by the petitioner for the purpose of transporting 579 cases of tax-paid Calvert Whiskey — a part of an interstate shipment — from Baltimore, Md., to Charleston, S.C. Gordon was prosecuted on a warrant charging him, in three counts, (1) with the unlawful transportation of "intoxicating liquors," (2) with the unlawful possession of "intoxicating liquors," and (3) with the unlawful possession of "intoxicating liquors" for the purpose of sale. He was convicted, and the entire truck load of whiskey, consisting of 579 cases, was ordered confiscated.

The criminal prosecution was tried upon the theory and instruction that notwithstanding the interstate character of the shipment, if the jury were "satisfied beyond a reasonable doubt that while it was in this county, John Gordon took possession of it and had it in his possession for the purpose of sale, it would be your duty to find him guilty."

The verdict was: "Guilty as charged in the warrant on all three counts."

It is the contention of the petitioner that at no time was its possession of the shipment ever changed or broken; or the character of the interstate shipment in any way altered; "and further, in the alternative, that if John Gordon ever committed any illegal act or had any illegal intent with respect to any part of such whiskey said act and said intent was confined in its scope to not more than 7 cases of whiskey."

The petitioner sought to appear at the trial and protect its interest, as both consignor and consignee were looking to it and insisting upon delivery in accordance with the original bill of lading. This was denied except upon condition, which the petitioner did not feel at liberty to accept.

In the order of confiscation, provision was made that any and all persons claiming an interest in the matter might come in and assert their rights within thirty days. The petitioner duly intervened in the time allowed.

In upholding the conviction of John Gordon, it was observed that the petitioner had been granted an opportunity to present its claim, which had not been heard, and that "it should have full opportunity to be heard."

When the matter came on for hearing at the November Civil Term, 1944, Wake Superior Court, the petitioner moved for judgment by default on its petition. The court "on hearing the motion, overruled the same," and granted the motions of the Board of Education of Wake County and the Board of Education of Chatham County "for judgment on the pleadings, and on the record in the criminal case." The court thereupon found certain facts from the record in the criminal case and adjudged that the petition of the Atlantic States Motor Lines, Inc., "be and the same is hereby denied . . . that the whiskey seized in this case be confiscated in accordance with the former order of this court, and this cause is retained for a determination of the rights of the Board of Education of Wake County and the Board of Education of Chatham County to the proceeds derived from a sale of the whiskey herein ordered confiscated."

From this order the petitioner appeals, assigning errors. We said on the former appeal that the common carrier was entitled to a hearing on its petition. Has this been accorded? The appellant says not, as the matter was determined on counter-motions based on the record in the criminal case, to which it was not a party.

It is provided by G.S., 18-6, that when any officer of the law shall discover any person in this State in the act of transporting, in violation of law, intoxicating liquor in any wagon, buggy, automobile, water or air craft, or other vehicle, "it shall be his duty to seize any and all intoxicating liquor found therein being transported contrary to law," take possession of the vehicle and team or conveyance and arrest the person in charge thereof. And further, upon conviction of the person so arrested, the court "shall order the liquor destroyed," unless it be tax-paid liquor, in which event it is to be disposed of in accordance with the provisions of G. S., 18-13. Section 18-48 also provides for the forfeiture of nontax-paid liquor, unlawfully possessed, together with the vehicle used in its transportation, etc. S. v. Davis, 214 N.C. 787, 1 S.E.2d 104.

The question then arises whether all the whiskey found in the truck driven by John Gordon, or only a part of it, was "being transported contrary to law." This question was neither mooted nor determined in the trial of the criminal prosecution, since it was immaterial under the language of the warrant. It was initially raised by the intervener.

If a truck load of produce or merchandise were passing through the State in interstate commerce and the agent in charge should pilfer a small quantity and offer it for sale, it would hardly be contended the entire truck load had thereby lost its character as an interstate shipment. And while the same reasoning applies to a truck load of intoxicating liquor, lawfully passing through the State in interstate commerce, the case with which the particular commodity seems to find its way into forbidden channels makes it a problem subject, both in the field of legislation and law enforcement. Duckworth v. Arkansas, 314 U.S. 390, 86 L.Ed., 294. Also, as might be expected, the ascertainment of the legislative will on the subject is sometimes fraught with difficulty. Hence, the one duty of the courts is to hold the balance "nice, clear and true," and let the result be as it may. Tumey v. Ohio, 273 U.S. 210, 50 A.L.R., 1243; Inre Steele, 220 N.C. 685. 18 S.E.2d 132. Interstate commerce is protected by Federal law, but the semblance of it is not to be used to circumvent the State law. S. v. Davis, supra. Nor is the innocent to be punished or the guilty allowed to escape. In other words, justice is to be administered regardless of the character or subject matter of the controversy.

In the instant case the driver of the truck was arrested and charged with the unlawful possession and transportation of "intoxicating liquors," without naming the amount. The extent of his illegal intent and acts, therefore, was not at issue on his trial. The jury was instructed that notwithstanding the character of the shipment, whether interstate or not, if Gordon "took possession of it and had it in his possession for the purpose of sale," the duty would devolve upon the jury to find him guilty. The quantity of "intoxicating liquors" which he took into his possession for the purpose of sale was neither specified nor considered. The statute provides, not for the seizure of any and all intoxicating liquor found in the vehicle, period, but for the seizure of "any and all intoxicating liquor found therein being transported contrary to law." The intervener says that while Gordon may have filched a small part of the cargo, which the jury has found was "being transported contrary to law." Still the bulk of the shipment was being transported in interstate commerce and under sanction of the law. Johnson v. Yellow Cab Transit Co., 321 U.S. 383,88 L.Ed., 814. The Supreme Court of the United States "in a long series of cases . . . decided that intoxicating liquor is a legitimate subject of commerce . . . and as such within the protection of the Commerce Clause. In the absence of regulation by Congress, the movement of intoxicants in interstate commerce, like that of all other merchantable goods, was `free from all state control'" — Mr. Justice Frankfurter (concurring) inCarter v. Virginia, 321 U.S. 131, 88 L.Ed., 605.

In deference to the jury's finding, but without conceding loss of its right thereto, the intervener foregoes any claim to the part which it says was purloined. It insists, however, that the allegations of fact set out in its petition should be determined in keeping with the requirements of due process and agreeably to the law of the forum. Morgan v. U.S., 304 U.S. 1, 82 L.Ed., 1129. These allegations remain undetermined on the record, since the judgment was entered on counter-motions, without any evidence being taken, or any hearing had on the petition other than the motion for judgment by default, which was overruled. "It is a sound and just principle of law and one worthy of acceptation that `absence of notice or opportunity to be heard, violates the due process of law provision'" — Brogden, J., in Hart v. Comrs., 192 N.C. 161, 134 S.E. 403.

Seemingly the facts alleged by the intervener were overlooked or disregarded. They are quite sufficient to survive a demurrer or to withstand the counter-motions for judgment on the petitions. There was no agreement upon the facts or that the judge should find the facts from the record in the criminal case. Indeed, the matter now at issue was neither in focus nor decided on that record; otherwise the right to a full hearing would hardly have been announced as the law of the case when it was here on the former appeal. The same petition was before us at that time. "The basic elements" of a fair and full hearing on the facts "include the right of each party to be apprised of all the evidence upon which a factual adjudication rests, plus the right to examine, explain or rebut all such evidence" — Mr. Justice Murphy in Carter v. Kubler, 320 U.S. 243,88 L.Ed., 26.

The procedure here followed — the same as in other cases — is authorized by order of the Superior Court entered herein and was approved in our former opinion. It is now suggested that the petition should be dismissed and the intervener remitted to equity for its relief.McCormick v. Proctor, 217 N.C. 23, 6 S.E.2d 870. The basis of the suggestion is that G.S., 18-6, provides only for a hearing in respect of the seized vehicle used in transporting intoxicating liquor contrary to law, and then "with the right on the part of the claimant to have a jury pass upon his claim." The statute is so framed because by the terms of this section the liquor itself is to be destroyed. But in section 18-13 provision is made for the return of the seized liquor to the established owner upon the acquittal of the person so charged, otherwise it may be turned over to the board of county commissioners for disposition as therein provided. Thus this latter section clearly contemplates a hearing in the criminal case to determine the "established owner" or rightful claimant to the liquor. The parties have not questioned the appropriateness of the procedure. The remedy appears to be adequate for the purpose. Anyhow, it has been approved in this case. 30 Am. Jur., 539 and 550. The procedural provisions of section 18-6 are specifically referred to in section 18-48 and made applicable to proceedings thereunder. 30 Am. Jur., 552.

There is no challenge here of any North Carolina law on the subject of intoxicating liquor. The intervener alleges, and at every turn in the case has contended, that the whiskey in question was lawfully moving in interstate commerce, and was therefore beyond the reach of the local law. This is the only issue raised by the intervention. It was not determined in the criminal case. The complete good faith of the carrier is in no way questioned. Johnson v. Yellow Cab Transit Co., supra.

The controversy then ranges to whether the liquor in excess of the seven cases shall continue in interstate transportation or be forfeited and sold in North Carolina. The intervener is seeking to recover the shipment in order to discharge its obligations as a common carrier. The respondents are asking that it be sold and the proceeds turned over to the appropriate school fund. There is no apparent reason why the pertinent facts should not be duly ascertained and the law properly applied as in other cases. 30 Am.Jur., 552. If the allegations of the petition be true, the liquor in question is not subject to condemnation under the statute. And as between a summary disposition of the matter and an adequate hearing on the merits, there appears little ground for debate, if established principles are to be observed. Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283; Markham v.Carver, 188 N.C. 615, 125 S.E. 409.

The case is not like S. v. Hall, 224 N.C. 314, 30 S.E.2d 158, where the defendant was charged with the unlawful possession and transportation of the whole cargo — 323 cases of intoxicating liquor — and he pleaded guilty to the offense as charged in the warrant. There the liquor "so unlawfully possessed and transported" was admittedly the whole cargo. Here the carrier contends that the faithlessness of Gordon in wrongfully extracting not more than seven cases of "intoxicating liquors" from an otherwise lawful interstate shipment, without its knowledge or consent, does not and cannot change the character of the entire shipment. The facts in respect of this position are yet undetermined. The subject of the intervention is lawful interstate transportation. Of course, if it should turn out to be something else, that is another matter. The carrier is entitled to make good its allegations, if it can. S. v. Hall, supra.

To this end the matter will be remanded for another hearing.

New trial.