State v. Parker

66 S.E.2d 907 (1951) 234 N.C. 236

STATE
v.
PARKER.

No. 221.

Supreme Court of North Carolina.

October 10, 1951.

Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.

E. R. Temple, Smithfield, J. R. Barefoot, Benson, for defendant appellant.

WINBORNE, Justice.

Decision on the assignments of error brought forward in the brief of appellant requires express consideration of these questions:

1. Defendant's challenge to the ruling of the trial judge in denying his motion for a continuance at the February Term 1951, on the grounds stated, is not well taken.

Our decisions are to the effect that this is a matter addressed to the discretion of the trial judge, and, in the absence of manifest abuse, his ruling thereon is not reviewable. And on the facts presented on this record, we are of opinion that no such abuse has been made to appear. See, among many others, these cases: State v. Riley, 188 N.C. 72, 123 S.E. 303; State v. Lea, 203 N.C. 13, 164 S.E. 737; State v. Banks, 204 N.C. 233, 167 S.E. 851; State v. Gibson, 229 N.C. 497, 50 S. E.2d 520.

2. The ruling of the court, on defendant's plea in abatement, erroneously designated "Motion to quash the bill of indictment", State v. Shemwell, 180 N.C. 718, 104 S.E. 885, as to the count (the second) charging unlawful possession of ninety-six gallons of intoxicating liquor on which taxes had not been paid, is questioned, and properly so, we hold.

The ground on which the plea is based is that the offense charged in this count is one over which the Recorder's Court of Johnston County had concurrent jurisdiction, and over which it had exercised jurisdiction prior to the finding of the bill of indictment in Superior Court.

In this connection, attention is directed to the Act of General Assembly of North Carolina, Public-Local Laws 1911, Chapter 269, by which the Recorder's Court of Johnston County was created. Section 6 of this act, in pertinent part, reads as follows: "Said court shall have all jurisdiction and power in all criminal cases arising in said county which are now or may hereafter be given to justices of the peace, and in addition to the jurisdiction conferred by this section, shall have concurrent original jurisdiction of all other criminal offenses committed in said county below the grade of felony, as now defined by law, and the same are hereby declared to be petty misdemeanors * * *".

Such being the case, the provisions of G.S. § 7-64 are inapplicable in that this section of the General Statutes divests inferior courts of exclusive jurisdiction of certain criminal actions and declares that their jurisdiction of such actions shall be concurrent with Superior Court, and exercised by the court first taking cognizance thereof. State v. Reavis, 228 N.C. 18, 44 S.E.2d 354.

However, decisions of this court are uniform in holding that where two courts have concurrent jurisdiction of a case, the court which first acquires jurisdiction over the case retains it to the exclusion of the other court. Childs v. Martin, 69 N.C. 126; In re Schenck, 74 N.C. 607; Haywood v. Haywood, 79 N.C. 42; Young v. Rollins, 85 N.C. 485; State v. Williford, 91 N.C. 529; Worth v. Piedmont Bank, 121 N.C. 343, 28 S.E. 488; Hambley & Co. v. H. W. White & Co., 192 N.C. 31, 133 S.E. 399, Id., 192 N.C. 624, 135 S.E. 626; Allen v. Allemania Fire Ins. Co., 213 N.C. 586, 197 S. E. 200; see also McIntosh, N. C. P. & P., p. 62.

In Childs v. Martin, supra, and in others of the cases cited, the principle is expressed in this quotation: "The rule is where there are courts of equal and concurrent jurisdiction the court possesses the case in which jurisdiction first attaches". Merrill v. Lake, 16 Ohio 673.

And in State v. Williford, supra, this Court in opinion by Ashe, J., said: "Where the jurisdiction is concurrent, it would seem that either court may take jurisdiction, and when no objection by plea in abatement is made to the jurisdiction, it may proceed to judgment; and such judgment may be pleaded in bar of the prosecution in the other court."

But in the instant case plea in abatement is made in Superior Court to the count in question. Hence it is without jurisdiction to proceed to judgment thereon, and its judgment would not be a bar to further prosecution in the Recorder's Court for same offense. See State v. Tisdale, 19 N.C. 159; State v. Casey, 44 N.C. 209; State v. Williford, supra; State v. Roberts, 98 N.C. 756, 3 S.E. 682, 683; compare State v. Bowers, 94 N.C. 910.

In the case State v. Roberts, supra, the court said: "It is settled that although a party may be indicted for a criminal offense in a court having jurisdiction of it, yet if, pending that indictment, and before being held to answer thereto, he shall be indicted and convicted of the same offense in another court, having concurrent jurisdiction thereof, he may plead, as a defense to the first indictment, such former conviction, and have his plea sustained."

But in the present case the Recorder's Court had issued warrant for defendant, and he had been held to answer the charge in that court, before the bill of indictment was obtained in Superior Court. Therefore, defendant's plea in abatement as to the second count in the bill of indictment on which he was indicted in Superior Court should have been sustained.

3. Appellant assigns as error the ruling of the court in denying his motion for judgment as of nonsuit on all counts, and particularly as to the count charging conspiracy. Taking the evidence in the light most favorable to the State, we are of opinion and hold that the evidence is insufficient to take the case to the jury on the conspiracy charge.

"A `conspiracy' is generally defined to be `an agreement between two or more individuals to do an unlawful act or to do a lawful act in an unlawful way.'" State v. Dalton, 168 N.C. 204, 83 S.E. 693, 694. State v. Ritter, 197 N.C. 113, 147 S.E. 733; State v. Lea, supra; State v. Whiteside, 204 N.C. 710, 169 S.E. 711; State v. Summerlin, 232 N.C. 333, 60 S.E.2d 322; Muse v. Morrison, N.C., 66 S.E.2d 783.

The crime of conspiracy consists of the conspiracy, and not its execution. State v. Younger, 12 N.C. 357; State v. Ritter, supra; State v. Wrenn, 198 N.C. 260, 151 S.E. 261.

And the offense of unlawful conspiracy may be shown by circumstantial evidence. State v. Lea, supra; State v. Whiteside, supra; State v. Summerlin, supra. But "when the State relies upon circumstantial evidence for a conviction, the circumstances and evidence must be such as to produce in the minds of the jurors a moral certainty of the defendant's guilt, and exclude any other reasonable hypothesis". State v. Stiwinter, 211 N.C. 278, 189 S.E. 868, 869, and cases cited. See also State v. Madden, 212 N.C. 56, 192 S.E. 859; State v. Miller, 220 N.C. 660, 18 S.E.2d 143; State v. Graham, 224 N.C. 347, 30 S.E.2d 151; State v. Webb, 233 N.C. 382, 64 S.E. 2d 268, and cases cited.

4. But as to the third count, charging defendant with the unlawful possession of alcoholic liquors on which taxes had not been paid, for the purpose of sale, the evidence is sufficient to support a verdict of guilty.

The possession of non-tax-paid liquor in any quantity anywhere in the State is, without exception, unlawful. G.S. § 18-48; State v. McNeill, 225 N.C. 560, 35 S.E.2d 629; State v. Barnhardt, 230 N.C. 223, 52 S.E.2d 904.

Possession of liquor by any person not legally permitted to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of sale. G.S. § 18-11, formerly C.S. § 3411(j); State v. Graham, 224 N.C. 347, 30 S.E.2d 151.

Moreover, 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, 190 N.C. 239, 129 S.E. 600; 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."

Thus, the evidence tending to show that ninety-six gallons of intoxicating liquor were found in the basement of the tenant house on defendant's farm, and tending to show that he alone had key to the door to the basement, is sufficient to support constructive possession.

Other exceptions directed against the charge, given by the court to the jury, and to failure of the court to charge in accordance with provisions of G.S. § 1-180 have been given due consideration and fail to show error for which a new trial should be granted.

But the judgment will be set aside and the case will be remanded to the trial court to the end that proper judgment may be entered in accordance with this opinion. State v. Lewis, 226 N.C. 249, 37 S.E.2d 691; State v. Malpass, 226 N.C. 403, 38 S.E.2d 156; State v. Braxton, 230 N.C. 312, 52 S. E.2d 895; State v. Camel, 230 N.C. 426, 53 S.E.2d 313.

Error and remanded.