Opinion
(Filed 3 December, 1919.)
1. Appeal and Error — Objections and Exceptions — Instructions — Contentions.
Objection to a statement by the judge of the appellant's contentions as being incorrect, should be made at the time, or an exception thereto will not be considered on appeal. In this case it is held that the statement, "he stated on the stand he was going for liquor," is substantially the same as "I thought we were going after liquor."
2. Appeal and Error — Objections and Exceptions — Criminal Law — Legal Principles.
Exceptions that the judge should have instructed the jury upon the defendant's contentions on trial for violating the prohibition law, after he had stated them, is without merit when there is no legal principle involved beyond the doctrine of reasonable doubt, on which the judge correctly charged; and an error in an instruction upon a count in the indictment, on which the defendant was acquitted, is rendered harmless by the verdict.
3. Intoxicating Liquors — Criminal Law — Transporting — Statutes.
A conviction for the unlawful transportation of liquor, chapter 97, Laws 1913, cannot be sustained when the defendant was transporting his own liquor, but not for the purpose of sale, and only gave the package to his companion to take a drink.
4. Criminal Law — Indictment — Counts — Verdict — Appeal and Error — New Trial.
A general verdict of guilty upon several counts of an indictment will apply to each count, and when error has been committed as to some, the verdict will stand as to the others, and a new trial will not be granted.
APPEAL by defendant from Harding, J., at the August Term, 1919, of BURKE. (758)
This is a criminal action, and from the judgment upon the verdict the defendant appealed to this Court.
The indictment, upon which he was tried, charged:
(1) Possession of liquor with the purpose of sale.
(2) Receipt of more than one quart at a time.
(3) Receipt of more than one quart at a time in a single package.
(4) Transportation of the liquor.
The defendant was convicted on the last three counts, and acquitted on the first.
The evidence of the State tended to show that the defendant, on the night of 13 June, 1919, drove the witnesses Scott and Ervin, in his automobile, out south about three miles from Morganton; that after arriving at his point of destination, he left the other two in his car, while he, taking a suitcase with him, went off into the woods; that in about ten minutes he returned, having a gallon jug of corn whiskey in the suitcase; that on the way back to Morganton he handed the jug to Scott to take a drink, and while he was trying to withdraw the stopper the officers came up and arrested them.
The evidence for defendant was that Scott bought and received the liquor and not the defendant.
To the following instructions of the court the defendant excepted:
"The State contends if it has failed to satisfy you that he was the man that got the liquor, wherever it was, and failed to satisfy you he actually received it in his possession, the State contends that he was guilty of transporting it from a point within North Carolina to some other point to some person more than a quart of liquor. The State contends it has shown he got the liquor, put it in the suitcase, brought it and put it in the automobile and delivered (759) it to Mr. Scott; that Scott took it into his own hands and tried to get the stopper out and take a drink. If the State has satisfied you of that beyond a reasonable doubt, then he would be guilty, and you should convict him on that count.
"2. He contends he had an automobile, and while he knew it was his purpose to go in the country with Mr. Scott, that he knew Scott was going after liquor, or that was his purpose in going there to get some liquor — he stated that on the stand.
"3. To the failure of the court to instruct the jury as to the rules of law which applied upon the defendant's contention in event the jury found that the evidence sustained such contention, and to the failure of the court to instruct the jury as to the principles of law which would apply upon the defendant's contention, which were given by the court, the defendant excepts upon the ground that it was useless to present such contention unless the law applying thereto was also presented to the jury.
"4. If you are satisfied beyond a reasonable doubt that he was transporting liquor from one point in this State to another point to some person, you will convict him of that."
Attorney-General Manning and Assistant Attorney-General Nash for the State.
W. C. Newland for defendant.
CLARK, C. J., concurring in result.
The defendant is indicted in the first count under chapter 44, Laws 1913, and in the second, third, and fourth counts under chapter 97, Laws 1915, and these statutes cover the several offenses charged in the indictment.
The exceptions are to the charge, and it is well to consider the second and third first, as the first and fourth instructions relate to the same count.
The objection of the defendant to the second instruction is to the use of the words, "he stated that on the stand," upon the ground it represented the evidence of the defendant incorrectly, but it will be observed his Honor was then stating the contentions of the parties, and "if contentions are not properly stated, the attention of the court should then be called to the omission so that it may be supplied." Mfg. Co. v. Building Co., 177 N.C. 106, and cases cited.
If we, however, turn to the record we find the defendant testified: "I thought we were going after some liquor," which is substantially as his Honor stated.
The third exception is to the failure to fully explain the law to the jury, but there was no legal principle involved beyond the doctrine of reasonable doubt, which was correctly stated, except (760) as bearing on the first count, upon which the defendant was acquitted, and the fourth. On the second and third counts the controversy was one of fact as to whether the liquor was received by the defendant or Scott.
We do not approve the charge on the fourth count.
If the evidence of the State is believed, the defendant was transporting his own liquor, and not for the purpose of sale, and we do not think handing a bottle to a companion to take a drink is such delivery as is contemplated by the statute, which was construed in S. v. Little, 171 N.C. 807, to mean transporting or carrying "to or for any other person, firm or corporation."
This does not, however, entitle the defendant to a new trial, because there are two good counts as to which there is no error, and "It is well settled in this State that where there is more than one count in the indictment, and there is a general verdict, this is a verdict of guilty on each count, and if there is a defect as to one or more counts by reason of any defect therein, or erroneous charge as to said count, or lack of evidence, the verdict will be imputed to the sound count in the indictment, as to which there was no erroneous instruction, and upon which evidence is offered. S. v. Toole, 106 N.C. 736, where the authorities to that effect, which are numerous, are collected." S. v. Holder, 133 N.C. 711.
No error.