Opinion
Filed 30 November, 1955.
1. Intoxicating Liquor 9d — Evidence in this case that officers, under authority a search warrant, found a quantity of tax-paid liquor in defendant's possession in her home, and that defendant possessed it for the purpose of sale, held sufficient to take the case to the jury.
2. Criminal Law 62f — Defendant's appeal from a judgment imposing a suspended sentence negates defendant's consent thereto, express or implied, and the cause must be remanded for proper judgment.
APPEAL by defendant from McKeithen, Special J., 13 June, 1955, of GUILFORD.
Attorney-General Rodman and Assistant Attorney-General Bruton for the State. Elreta Melton Alexander for defendant, appellant.
Criminal prosecution for unlawful possession of tax-paid whiskey for the purpose of sale.
Defendant was first tried and convicted in the municipal-county court. Upon appeal to and trial in the Superior Court, the jury returned a verdict of guilty as charged in the warrant.
The judgment pronounced imposed a sentence of imprisonment, which was suspended on specified conditions. Thereupon, defendant excepted and appealed, assigning errors.
The State's evidence tends to show that officers, under authority of a search warrant, found a quantity of tax-paid whiskey in defendant's possession, in her home; and there was plenary evidence that she had it for the purpose of sale. The ruling that the evidence was sufficient for submission to the jury was correct. Moreover, defendant's assignments of error challenging the rulings of the court in admitting certain of the testimony offered by the State are without merit. The trial and verdict are upheld.
However, since defendant promptly excepted thereto and appealed therefrom, the conditional judgment pronounced was not based on defendant's consent, express or implied. Hence, for the reasons stated by Winborne, J., in S. v. Ritchie, ante, 182, the judgment is stricken out and the cause is remanded for the pronouncement of a new judgment.
Error and remanded.