State v. Collins

BeocK, J.

Defendant assigns as error the following portion of the judge’s charge to the jury:

“If you find that he had in his possession at any time any amount of non-taxpaid whiskey either in his house or nearby in the country, you will find him guilty in each count.”

This part of the charge is material error and prejudicial to the defendant because it instructed the jury that if the defendant had non-taxpaid whiskey in his possession at any time, or at least on either 2 January 1969 or 12 July 1968, it would be their duty to find defendant guilty of each count under both warrants.

Even though the law may have been correctly stated in other portions of the charge “[i]t has been uniformly held that where the court charges correctly at one point and incorrectly at another, a new trial is necessary because the jury may have acted upon the incorrect part.” State v. Parrish, 275 N.C. 69, 165 S.E. 2d 230.

Additionally, we note the verdict was improper in part in that one of the counts in each warrant charged the defendant with illegal sale of non-taxpaid whiskey, yet the verdict as entered on this count in each warrant found the defendant guilty of illegal possession for sale.

Since there must be a new trial, we do not deem it necessary to discuss the remaining assignment of error as it may not arise on another trial.

For material error in the charge a new trial is ordered.

New trial.

BRItt and Vaughn, JJ., concur.