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State v. Murphery

Supreme Court of North Carolina
Sep 1, 1923
186 N.C. 113 (N.C. 1923)

Summary

In S. v. Murphrey, 186 N.C. 113, although upon the record in that case, an instruction similar to that here assigned as error, was held not reversible error, this Court said: "Even in instances of this character it would be more satisfactory if the court's instruction to the jury had followed the usual formula on the question of `reasonable doubt.'"

Summary of this case from State v. Hardy

Opinion

(Filed 26 September, 1923.)

1. Criminal Law — Pleas — Presumptions — Evidence — Questions for Jury — Trials.

The plea of not guilty raises a presumption of innocence of the defendant, disputes the credibility of the State's evidence, and raises the question of his guilt for the jury to determine.

2. Spirituous Liquor — Evidence — Instructions — Verdict Directing — Appeal and Error.

In an action for the unlawful sale of liquor the evidence tended to show that the witness, a physician, obtained the liquor from the defendant for a patient, for which the defendant received money offered by the witness: Held, the transaction was an unlawful sale, coming within the inhibition of the statute, and an instruction by the court for the jury to find a verdict of guilty, if found to be true, was correct, there being no other evidence in the case.

CRIMINAL ACTION, tried before Grady, J., and a jury, at February Term, 1923, of GREENE.

Attorney-General and Assistant Attorney-General for the State.

Richard T. Martin and Walter G. Sheppard for defendant.


The defendant was indicted for the unlawful sale of spirituous liquor. Dr. W. E. Dawson, who was the only witness, testified for the State as follows: "I was on my way to see a patient suffering with influenza, when I met Herbert and asked him if he had any whiskey, and he said that he could let me have a quart. I said, `Shoot it over,' and gave him two one-dollar bills, and he gave me one quart of whiskey. He did not make any charges. I simply gave him two dollars and asked him if that was all right, and drove on. I have purchased whiskey from others and used it in treating my patients suffering with influenza."

His Honor instructed the jury as follows: "I charge you, gentlemen, if you believe the evidence in this case, you will return a verdict of guilty. You may retire and make up your verdict, or you may sit where you are." The defendant excepted. The jury returned a verdict of guilty, upon which judgment was pronounced, and the defendant appealed.


The defendant entered a plea of not guilty and thereby put in issue not only his guilt, but the credibility of the State's evidence; for evidence tending to show guilt is disputed even when uncontradicted, there being a presumption of innocence which can be overcome only by the verdict of a jury. S. v. Hill, 141 N.C. 770. The State introduced only one witness, and the defendant offered no evidence. To establish guilt under these circumstances, it was incumbent on the State to show that Dawson's testimony, if accepted by the jury, was sufficient to show a breach of the statute. The substance of his testimony was this: He inquired whether the defendant had any whiskey; the defendant said he could let him have a quart; he gave the defendant two dollars, and the defendant delivered the liquor.

True, the witness said the defendant made no charges, but the testimony, if believed, clearly shows that the defendant received the money as a consideration for the transfer of his title to the whiskey. This transaction constituted a sale ( S. v. Colonial Club, 154 N.C. 177), and the credibility of the testimony was submitted to and determined by the jury.

His Honor's instruction is sustained by several decisions. In S. v. Vines, 93 N.C. 493, there was only one witness, and the court charged the jury, if they believed the testimony, the prisoner was guilty of manslaughter. Discussing the prisoner's exception, Merrimon, J., said: "It was insisted on the argument here that the judge invaded the province of the jury in instructing them that, `if they believed the testimony of the witness, the prisoner was guilty of manslaughter.' We do not think so; this contention has not the slightest foundation. The judge did not intimate in the least degree, in terms or by implication, that he did or did not believe the evidence to be true, nor did he tell the jury that they should believe it, or any part of it; he, in effect, told them that, in any possible view of the evidence (and taking it most favorably for the prisoner), if they believed it to be true, then, as a conclusion of law, he was guilty of manslaughter. This was unobjectionable in this case. There was but one witness; there was no conflict of testimony; there were no alternative aspects of it to be submitted. The credit of the witness and the sufficiency of his testimony to produce conviction upon their minds was broadly and without qualification left to the jury. S. v. Walker, 4 N.C. 662; S. v. Hildreth, 31 N.C. 429; S. v. Ellick, 60 N.C. 450; S. v. Baker, 63 N.C. 276; S. v. Elwood, 73 N.C. 189; S. v. Burke, 82 N.C. 551."

In S. v. Riley, 113 N.C. 648, Clark, J., observed: "The evidence for the State being uncontradicted, the court told the jury, if they believed the evidence, to return a verdict of guilty. This was correct, upon the evidence set out, and if the jury had returned a verdict, there would be no ground for exception"; and in S. v. Hill, 141 N.C. 769, Hoke, J., concluded that where, in any aspect of the testimony, the defendant's guilt is manifest, the judge may tell the jury, "if they believe the evidence,' or `if they find the facts to be as testified,' they will return a verdict," etc. S. v. Woolard, 119 N.C. 779; S. v. Winchester, 113 N.C. 641.

Our conclusion is not at variance with the decision in S. v. Singleton, 183 N.C. 738, or S. v. Estes, 185 N.C. 752, for in each of these cases it was held that the evidence, if true, did not necessarily establish the guilt of the defendant, and that under a proper charge the matters in controversy should have been submitted to the jury.

We have directed attention to the fact that the testimony in the case at bar is uncontradicted; but even in instances of this character it would be more satisfactory if the court's instruction to the jury followed the usual formula on the question of "reasonable doubt."

We find no sufficient cause for a new trial.

No error.


Summaries of

State v. Murphery

Supreme Court of North Carolina
Sep 1, 1923
186 N.C. 113 (N.C. 1923)

In S. v. Murphrey, 186 N.C. 113, although upon the record in that case, an instruction similar to that here assigned as error, was held not reversible error, this Court said: "Even in instances of this character it would be more satisfactory if the court's instruction to the jury had followed the usual formula on the question of `reasonable doubt.'"

Summary of this case from State v. Hardy

In McNair v. Yarboro, 186 N.C. 113, it is said: "And we consider it well to state further that, while this chapter 92, section 3, provides that `where a copy of the complaint has been served upon each of the defendants, the clerk shall not extend the time for filing answer beyond twenty days after such service.

Summary of this case from Cahoon v. Everton
Case details for

State v. Murphery

Case Details

Full title:STATE v. HERBERT MURPHREY

Court:Supreme Court of North Carolina

Date published: Sep 1, 1923

Citations

186 N.C. 113 (N.C. 1923)
118 S.E. 894

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