State v. Tessnear

144 S.E.2d 43 (1965) 265 N.C. 319

STATE
v.
Tommy TESSNEAR.

No. 8.

Supreme Court of North Carolina.

September 22, 1965.

T. W. Bruton, Atty. Gen., Charles W. Barbee, Jr., Asst. Atty. Gen., for the State.

J. Nat Hamrick, Rutherfordton, for defendant appellant.

SHARP, Justice.

The State's evidence was sufficient to overrule defendant's motions of nonsuit. State v. Ryals, 244 N.C. 75, 92 S.E.2d 443; State v. Harrison, 239 N.C. 659, 80 S.E.2d 481; State v. Avery, 236 N.C. 276, 72 S.E.2d 670. He is, however, entitled to a new trial for the error he assigns in the charge. The possession of any quantity of nontaxpaid liquor is, without exception, unlawful and, under G.S. 18-11, such possession is prima facie evidence that such liquor is kept for the purpose of being sold. State v. Guffey, 252 N.C. 60, 112 S.E. 2d 734; State v. Hill, 236 N.C. 704, 73 S.E. 2d 894. Prima facie evidence is evidence sufficient to justify, but not to compel, a finding of the ultimate fact to be proved. Home Finance Co. of Georgetown, Inc. v. O'Daniel, 237 N.C. 286, 74 S.E.2d 717. It must be weighed by the jury like any other evidence and considered along with all the other evidence in the case before the jury reaches its verdict. "In criminal cases this evidence, coupled with other evidence, must establish defendant's guilt beyond a reasonable doubt. Defendant is entitled to have the jury scrutinize this evidenc as it does all of the other evidence with a presumption of innocence in his favor." State v. Bryant, 245 N.C. 645, 648, 97 S.E.2d 264, 267; Stansbury, North Carolina Evidence § 203 (2d ed. 1963).

From the mere possession of nontaxpaid whiskey G.S. 18-11 authorizes, but does not compel, the jury to infer that the possessor intended to sell the whiskey. The statute raises a permissible inference. Stansbury, op. cit. supra, § 215. In characterizing it "a deep presumption" the trial judge expressed an opinion as to the strength of the evidence. Such an expression is prohibited by G.S. 1-180. State v. Anderson, 263 N.C. 124, 139 S.E.2d 6. In State v. Benton, 226 N.C. 745, 40 S.E.2d 617, defendant was granted a new trial because the trial judge told the jury, when it reported it could not reach a verdict, that the evidence was "rather clear" and the jury should agree if possible. In Bonner v. Hodges, 111 N.C. 66, 15 S.E. 881, the judge charged the jury that a circumstance shown in the evidence was "a strong badge of fraud." In granting a new trial, Avery, J., speaking for the Court, said, "(U)nder our statute it is only where the law gives to testimony an artificial weight that the judge is at liberty to mention the sufficiency of the proof at all in delivering his instructions to the jury." Id. at 68, 15 S.E. at 882. Accord, Earnhardt v. Clement, 137 N.C. 91, 49 S.E. 49.

Under the circumstances here, the admission of evidence tending to show the general reputation of defendant's premises was also error. Defendant was not charged with maintaining a nuisance, G.S. 19-1. Therefore, G.S. 19-3, which makes evidence of the general reputation of the place admissible for the purpose of proving the nuisance is not applicable. Since defendant neither testified as a witness nor offered evidence of his good character, the State was precluded from showing his bad character for any purpose whatever. State v. McLamb, 235 N.C. 251, 69 S.E.2d 537; State v. Nance, 195 N.C. 47, 141 S.E. 468; Stansbury, op. cit. supra, §§ 104, 108. A fortiori, evidence as to the bad reputation of defendant's premises was inadmissible here.

In State v. Springs, 184 N.C. 768, 114 S.E. 851, defendant was charged with the unlawful possession of spirituous liquors for the purpose of sale. At the trial he testified in his own behalf and also offered evidence tending to show his good character. Over objection, the State was allowed to offer testimony which "was received as substantive evidence, that Springs' place had a bad reputation for whiskey selling." Id. at 769, 114 S.E. at 852. On appeal, defendant was awarded a new trial because he had, "in effect been erroneously convicted by means of hearsay evidence * * *." Id. at 772, 114 S.E. at 853. The Court said that in the prosecution of offenses against the prohibition laws "evidence of general reputation of the place where the specific offense is alleged to have been committed [is inadmissible] unless * * * it has been made competent by some valid statute * *." Id. at 771, 114 S.E. at 852. It specifically disapproved State v. McNeill, 182 N.C. 855, 109 S.E. 84, in which such evidence had been admitted for the purpose of corroborating the State's evidence that the sheriff had found liquor on defendant's premises.

In State v. Turpin, 203 N.C. 11, 164 S.E. 926, a character witness for defendant testified that the reputation of her filling station "has been liquor." Stacy, C. J., said: "The evidence respecting the reputation of defendant's garage for selling liquor was hearsay and should have been excluded." Id. at 12, 164 S.E. at 926. In Annot., 68 A.L.R.2d 1300, 1302, North Carolina is included among those jurisdictions which hold "that evidence of the general reputation of defendant's premises is inadmissible in prosecutions for liquor law violations involving a charge of unlawful sale or possession of intoxicants at particular premises."

Defendant's contention that the search of his premises was illegal because the officer conducting the search did not make the affidavit upon which the warrant was issued is untenable. State v. Shermer, 216 N.C. 719, 6 S.E.2d 529.

For the errors designated, however, it is ordered that there be a

New trial.