(Filed 6 December, 1922.)
1. Intoxicating Liquors — Spirituous Liquors — Possession — Evidence — Questions for Jury — Criminal Law.
Held, the evidence in this case was sufficient to sustain a conviction of the defendant for having in his possession spirituous liquors for the purpose of sale, and of receiving more than one quart thereof within fifteen days time.
2. Intoxicating Liquors — Spirituous Liquors — Evidence — Declarations — Hearsay Evidence.
Upon the trial of defendant for having spirituous liquor in his possession for the purpose of sale, the defendant may not show, on cross-examination of the officer who had made the arrest, what the son of the defendant had said as to the ownership of the whiskey, at that time, it being objectionable as a mere declaration of a third party, and hearsay.
3. Intoxicating Liquors — Spirituous Liquors — Evidence — Instructions — Harmless Error.
Where there is evidence tending to show that the defendant's son was the real culprit, though the defendant was on trial for having the possession of spirituous liquor for the purpose of sale, etc., the exclusion of the defendant's testimony that he was not implicated in the unlawful act, and had forbidden his son to do it, is harmless error when it appears that the same evidence had been introduced at the trial, and had been submitted to the jury under a correct and clear instruction of the trial judge.
4. Constitutional Law — Federal Constitution — Limitation of Powers — Courts — Procedure — Indictment — Grand Jury.
Article v. of the Federal Constitution, providing that "no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment of indictment of a grand jury" is a limitation imposed on the powers of the Federal Government, and applies to the procedure in the Federal Courts, and not to trials for the violation of our State statutes relating to our liquor laws in the State courts. S. v. Pulliam, ante, 681, and other like cases, cited and applied.
5. Criminal Law — Evidence — Other Offenses — Scienter — Guilty Knowledge — Related Criminal Acts.
The principle upon which other offenses may be shown to have been committed against our criminal law by the defendant, though not charged therewith in the indictment, should be strictly construed, and applies only when they are so related with the unlawful act charged as to show scienter or guilty knowledge, if such is relevant to the inquiry in the particular case, and not too remote in point of time; and where the defendant is on trial for having possession of spirituous liquor for the purpose of sale, evidence that he had committed a like offense eleven years previous to the time of the offense charged is incompetent, and its admission at the trial constitutes reversible error when there is no evidence tending to show that the previous offense was related to or in any way connected with the one for which he was being tried. S. v. Beam, 179 N.C. 768, and other cases, cited and applied, and the competency and relevancy of such testimony discussed by WALKER, J.
APPEAL by defendant from McElroy, J., at Spring Term, 1922, of CLEVELAND.
Attorney-General Manning and Assistant Attorney — General Nash for the State.
Ryburn Hoey and O. Max Gardner for defendant.
CLARK, C. J., dissenting.
The defendant was convicted, at March Term, 1922, of Cleveland Superior Court, of having in his possession spirituous liquors for the purpose of sale, and of receiving more than one quart thereof within fifteen days time, and from the judgment upon such conviction appealed to this Court.
Defendant's exceptions 2 and 7 were taken to the judge's refusal of a judgment as of nonsuit against the State at the conclusion of its testimony, and again at the conclusion of all the testimony. The State's evidence, if believed, showed that in consequence of information received by them, officers. E. W. Dixon, J. F. Dixon, and M. N. Moore, after obtaining a proper search warrant, went out on Thursday before Christmas, 1921 (22 December), to Beam's residence, about one mile and a half from Grover, in Cleveland County. The search was made about 3 p. m. of that day. As the officers drove slowly along in front of defendant's house, they noticed three men coming out of a little shop building, and one of those men was putting something in each hip pocket as he came out. This man went out behind the house to the railroad, going in the direction of Kings Mountain. What he was putting in his pocket appeared to be bottles. Officer Moore stopped the man with the bottles on the railroad and found that they contained two pints of liquor, and looked like the bottles that were found on the premises of the defendant.
The defendant Beam was one of the three men coming out of this shop building at the time that the officer Moore got the two pints of whiskey. This shop building was about fifty yards from the defendant's house. The son of the defendant Audie Beam, on seeing the officers, ran back in the shop and they heard something smashing in there. Officer E. W. Dixon then went to the shop, and when he reached the door Audie Beam was breaking bottles out of the window against the side of the house. The bottles were filled with whiskey. "I ran in after him and he jumped out of the window and ran across a big field. As he ran he had his arms full and would throw the bottles against the ground and break them," Dixon testified. Young Beam also had bottles in his pocket.
The officers, continuing the search, found something like eighteen to twenty gallons of liquor, apparently concealed, on the premises. Besides the bottles that were broken, as above stated, they found in the barn, which was nearer the house than the shop, some jars, one of which had liquor in it. In the shop there were bottles covered up and hid. The ground nearby had been hollowed out into a trench and a plank was over it; that is, the ground had been turned back and a hollow place thus made, and in it were some of the bottles. Just above the shop they found a keg, lying besides a stump, with a few briers over it, that contained about fifteen gallons. At the defendant's sawmill, about two hundred yards from the house, they found some large empty kegs which had had whiskey in them. They also found two five-gallon demijohns. There had been liquor in them and tracks about them appeared to have been made the night before.
It is manifest, we think, that there was sufficient evidence to be submitted to the jury, as to the defendant's guilt upon the charge contained in the indictment or warrant.
Exception 1 was to the exclusion of an answer to a question put by defendant's counsel to officer E. W. Dixon on his cross-examination: "Did Audie Beam tell you whose whiskey that was right at the time that you arrested him?" The State objected and the objection was sustained. If Audie Beam himself had been on trial, the exclusion of the answer to this question would have been error, but Audie Beam was not on trial; consequently, this was a mere declaration of a third party, and hearsay.
Exceptions three, four, and five are untenable. They relate to testimony offered by the defendant that he had forbidden his son, Audie Beam, who was the real culprit, to deal in liquor on his, defendant's, premises, and that instead of selling liquor there himself, or keeping it for sale, he had protested against such illegal traffic and very positively forbidden it. These exceptions do not appear very clearly in the part of the record where they are first noticed, and especially as to what evidence of this kind was permitted by the court to be heard by the jury, but upon a close examination of the charge of Judge McElroy, it appears that the evidence was submitted to the jury for their consideration and a proper and quite a full instruction given in connection with it. It was admitted, at least, substantially by the court, although rejected at first. No harm or prejudice has therefore been suffered by the defendant in connection with this testimony.
The exceptions to the verdict and judgment, because there was no presentment or indictment, are, as we have shown, without any force, as Article v. of the Federal Constitution does not apply. It reads as follows: "No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury." It applies only to the Federal courts and their procedure, as will appear by the authorities hereinafter cited when this question will be further considered."
Exception 6 was taken to the admission of evidence that J. P. Hambright had bought whiskey from the defendant about eleven years before and had paid him $1 for a quart. The State contended that evidence of sales previous to the two-year limit of the statute is admissible as a circumstance sustaining the allegation of the State that defendant had liquor in his possession for the purpose of sale within the two years limit. This may be true, and yet the evidence be incompetent, as it is, upon another alleged ground, which is, that the testimony of the witness J. P. Hambright related to a transaction too remote in point of time and not so connected with the transaction now in question for it to be any evidence of the knowledge of the defendant that the liquor was kept for sale, or to show his motive or intent in disposing of it, if he did so, and further, as having no relevancy because the alleged sale which is referred to in Hambright's testimony was totally unconnected with the offense for which the defendant is indicted in this case. S. v. Beam, 179 N.C. 768, and authorities infra.
The case of S. v. Murphy, 84 N.C. 742, is, upon this question, a very instructive and illuminating one, the opinion being by Justice Ashe, who had for many years large experience in the trial of criminal cases when at the bar, and was profoundly learned in that branch of legal science. In the Murphy case, supra, after reviewing several of the leading cases decided in this county and in England, he said: "It is a fundamental principle of law that evidence of one offense cannot be given in evidence against a defendant to prove that he was guilty of another. We have been unable to find any exception to this well established rule, except in those cases where evidence of independent offenses have been admitted to explain or illustrate the facts upon which certain indictments are founded, as where in the investigation of an offense it becomes necessary to prove the quo animo, the intent, design, or guilty knowledge, etc. In such cases it has been held admissible to prove other offenses of like character, as for instance, in indictments for passing counterfeit money, the fact that the defendant, about the same time, had passed other counterfeit money of like kind, has been uniformly held to be admissible to show the scienter or guilty knowledge. So, on a charge for sending a threatening letter, prior and subsequent letters from the defendant to the person threatened have been received in evidence, explanatory of the meaning and intent of the particular letter, upon which the indictment is found. Rex v. Boucher, 4 C. P., 562." And as illustrating the principle involved in that case, he further stated that on indictments for receiving stolen goods, knowing them to be stolen, the prosecutor has been allowed to prove several acts of like character, with the view of showing therefrom a guilty knowledge on the part of the defendant. Whar. Cr. Law, sec. 639. "But as was suggested by the author," said Justice Ashe, "there should be some evidence showing a link or connection between them."
In Rex v. Davis, 6 C. P., 117, also approved by this Court in the Murphy case, supra, it appeared that, on the trial of an indictment for receiving stolen goods, evidence was admitted for the purpose of showing guilty knowledge of the defendant that other goods found, at the same time, in the house of the defendant, were stolen, although they were the subject of an indictment then pending. The judge before whom it was tried said: "A particular line is not fixed upon. All is evidence with a view to the scienter. There is no excluding the other articles found. But I do not think you should go further." That is, that the evidence was admissible to show the guilty knowledge of the defendant, but for no other purpose. "It is important not to confound the principles upon which the two classes of cases rest. On the one hand it is admissible to produce evidence of a distinct crime to prove scienter, or make out the res gestae, or to exhibit a chain of circumstantial evidence of guilt in respect to the act charged. On the other, it is necessary strictly to limit the evidence to these exceptions, and to exclude it, when it does not legitimately fall within their scope." Whar. Cr. Law, sec. 650.
One who commits a crime may be more likely to commit another; yet, logically, one crime does not prove another, nor tend to prove another, unless there is such a relation between them that proof of one tends to prove the other. Unless such a relation exists, it is illegal and manifestly unfair to require a man who is charged with a specific crime in the indictment to prepare a defense against other crimes that the States may attempt to prove against him, but which are not charged in the bill. The general rule should, therefore, be strictly enforced in all cases where applicable. However, there are exceptions. The rule only applies to cases where the offense charged and that offered to be proved are distinct. It does not apply where the subject-matter under investigation is of such a nature that it may consist of several stages or continuous acts, all constituting one transaction. Evidence which is relevant to the issue raised by the plea to the indictment is not made inadmissible by reason of the fact that it tends to prove the defendant guilty of another crime than that charged in the indictment. Such evidence is received, not because it is proof of the other crime, but because of its relevancy to the charge upon trial. While the prosecution cannot show separate and isolated crimes, or facts having no bearing upon the crime under investigation, it may show all the circumstances connected with the particular crime, even if in so doing it has to bring to light other offenses. 10 R.C.L., p. 940, sec. 110.
As this is an important question, we may just as well state the principal rule with some of its exceptions or qualifications which are pertinent here. The general rule is that when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime, wholly unconnected with that for which he is put upon his trial, must be excluded. It is deemed to be not proper to raise a presumption of guilt on the ground that, having committed one crime, the depravity it exhibits makes it likely he would commit another. It may be easier to believe a person guilty of one crime if it is know that he has committed one of similar character, or indeed, of any character; but the injustice of such a rule in courts of justice is apparent. It might lead to convictions upon the particular charge made by proof of other acts in no way connected with it, and to uniting evidence of several offenses to produce conviction for a single one. Again, evidence of other crimes compels the defendant to meet the charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the jury from the one immediately before it, and, by showing the defendant to have been a knave on other occasions, creates a prejudice which may cause injustice to be done him. According to a broader rule, in all cases, civil or criminal, the evidence must be confined to the point in issue; and it is said that in criminal cases the necessity is even stronger than in civil cases of strictly enforcing the rule, for where a prisoner is charged with an offense, it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment and matters relating thereto, which alone he can be expected to come prepared to answer. What has been said relates, of course, to the common-law system; under the civil law a somewhat different method is pursued, and much is claimed for it as a mode of achieving justice. The rule against admitting proof of extraneous crimes is subject, however, to certain qualifications or exceptions. In making proof against a defendant it is competent for the prosecution to put in evidence all relevant facts and circumstances which tend to establish any of the constitutive elements of the crime of which the defendant is accused in the case on trial, even though such facts and circumstances may tend to prove that the defendant has committed other crimes. So evidence covering the commission of other offenses is admissible when two or more crimes are so linked in point of time or circumstances that one cannot be fully shown without proving the other. Thus, for the purpose of proving a defendant guilty of the larceny of one article it is proper to prove that he stole other articles on the same expedition, but it is not proper to prove what he stole on an independent occasion. It is often difficult to determine the degree of relevancy which entitles the prosecution to introduce evidence showing the commission of other crimes, but much of the difficulty with reference to such evidence disappears if the evidence is considered strictly upon the ground of its relevancy to the purpose for which it is sought to be introduced, regardless of the fact that it may incidentally show the commission of some other offense. In other words, there ought not to be any more difficulty in deciding the relevancy of such evidence than there is when the circumstance of some other offense appearing is not involved. The mere proximity of time within which two offenses may be committed does not necessarily make one a part of the other. Immediateness is not the true test, but relevancy. There must be a causal relation or logical and natural connection between the two acts, or they must form parts of but one transaction. Where one offense constitutes a necessary element of another, proof may be made thereof. 8 R.C.L., p. 198, sec. 197.
Whenever mental state, scienter, or quo animo constitutes an ingredient of the offense charged, evidence is admissible of acts, conduct, or declarations of the accused which tend to establish such knowledge, intention, or motive notwithstanding the fact that it may disclose a different crime in law, but this is also subject to the qualifications already noted. 8 R.C.L., p. 201, sec. 197.
A very good exposition of the principle will be found in 16 Corpus Juris, 589, 590, 591, which corresponds, in the main, with that of Cyclopedia of Law and Procedure just cited, though not in all particulars. It is as follows: "Where the nature of the crime is such that guilty knowledge must be proved, evidence is admissible to show that, at another time and place not too remote, accused committed, or attempted to commit, a crime similar to that charged. In other words, where guilt cannot be predicated on the mere commission of an act, guilty knowledge may be proved by evidence of complicity in similar offenses; but where a guilty knowledge is presumed from the character of the criminal act, evidence of other crimes should not be received. Evidence of other crimes similar to that charged is relevant and admissible when it shows, or tends to show, a particular criminal intent which is necessary to constitute the crime charged. Any fact which proves, or tends to prove, the particular intent is competent, and cannot be excluded because it incidentally proves an independent crime. Where the question is whether a certain act was intentional or was done by accident or mistake, evidence to show that accused intentionally had committed similar acts is relevant to show the intent. On the other hand, where the nature of the offense is such that proof of its commission as charged carries with it an implication or presumption of criminal intent, evidence of the perpetration or attempted perpetration of other like offenses is in admissible. While, for evidence thereof to be admissible to show intent, the similar offenses must be related in kind to the one in question as to illustrate the question of intent, and must have been done sufficiently near, in point of time, to the act charged as to fairly throw some light on the question of intent." And in Prettyman v. U.S., 180 Federal Reporter, 30 ( S. c., 10 Ct. Court of Appeals, 384); the Court stated very fully the rule, with the exception or qualification, applicable in cases of this kind, where knowledge, motive, or intent is an ingredient. It was said there: "The Court below, over the objection of the defendants, permitted the introduction of testimony as to many acts other than those alleged in the indictment in order to prove the intent of the accused in doing the things which are charged to be criminal. The thoroughly established rule is that acts not charged in an indictment cannot be proved, among other reasons, because no testimony is pertinent unless it relate to the matters charged in the indictment, and as to which an issue is formed by the plea of not guilty, and because the accused, having no notice that testimony as to any other act would be offered, could not be prepared to meet it. But to this general rule there is at least one important exception, and where the intent with which an act charged to be criminal has been done becomes important, as it necessarily is in this case, then, within certain limits, proof of similar acts of the accused is admissible in order to show the intent with which the act charged in the indictment was done. We think, however, that such similar acts can be proved only when they were done sufficiently near, in point of time, to the act charged as fairly to throw some light upon the question of intent; when the similar acts are so related in kind to the one charged as to illustrate the question of intent; when the similar acts are in fact acts of the same general nature, or closely related to the transactions out of which the alleged criminal act arose; and when, in fact, the similar acts are acts of the person accused against whom that particular proof is directed. People v. Molineux, 168 N.Y. 264; 61 N.E. 286; 62 L.R.A., 193; Penn. Mut. Life Ins. Co. v. Mechanics, etc., Bank, 72 Fed., 422; 19 C.C.A., 286; 38 L.R.A., 33, 70; 3 Greenleaf on Evidence, chs. 15, 16; 1 Jones on Evidence, ch. 142; 1 Wigmore on Evidence, ch. 302; Moore v. United States, 150 U.S. 57; 14 Sup. Ct., 26; 37 L.Ed., 996; Wood v. United States, 16 Pet., 360; 10 L.Ed., 987."
The principles we have stated, with their limitations, were considered in Gray v. Cartwright, 174 N.C. 49, it being an action for malicious prosecution, the defendant having charged the plaintiff with stealing his cow, to which case we also refer as authority applicable here, and also to S. v. Beam, 179 N.C. 768.
This question is also fully considered in 12 Cyc., 408, where it is said: "Where the nature of the crime is such that guilty knowledge must be proved, evidence is admissible to prove that at another time and place not too remote the accused committed or attempted to commit a crime similar to that charged. Evidence of other crimes similar to that charged is relevant and admissible when it shows, or tends to show, a particular criminal intent which is necessary to constitute the crime charged. Any fact which proves, or tends to prove, the particular intent is competent, and cannot be excluded because it incidentally proves an independent crime. Where the question is whether a certain act was intentional or accidental, evidence to show that the accused intentionally committed similar acts before is relevant to show the intent. So, also, where malice is an element in the crime charged, as in murder, assault with intent to kill, arson, malicious mischief, and the like, evidence of another similar act by the accused is admitted to show malice. Evidence to show the motive prompting the commission of the crime is relevant and admissible notwithstanding it also shows the commission by the accused of another crime of a similar or dissimilar character. Thus it may be shown that the crime charged was committed for the purpose of concealing another crime, or to prevent the accused from being convicted of another crime. But evidence of another crime, which has no connection with that for which the accused is on trial, and which therefore is not relevant to prove motive, cannot be introduced under the guise of proving motive. Where the crime charged is part of a plan or system of criminal action, evidence of other crimes near to it or similar in character is relevant and admissible to show the knowledge and intent of the accused, and that the act charged was not the result of accident or inadvertence. This rule is often applied where the crime charged is one of a series of swindles, or other crimes involving a fraudulent intent, for the purpose of showing this intent."
The question is not, as seems to be supposed, that the testimony of Hambright was harmless, as all the authorities stated that this kind of evidence is, on the contrary, very harmful to the defendant, and is often calculated to secure a conviction, when defendant may be innocent, and for this reason, if for no other, the rule admitting it, in some cases, should be strictly enforced, and the evidence should be excluded where it does not relate to a transaction near to the commission of the offense in point of time, or so related to it as to throw light upon the question of guilt.
The defendant's counsel in this Court moved to arrest the judgment because the defendant was tried on a warrant from the recorder's court without any bill having been sent to and returned by the grand jury. They cite a case from the United States Supreme Court, which they claim is authority for their position. The first ten amendments to the Federal Constitution, however, are limitations upon the power of the Federal Government only. They do not, and were never intended to, limit the power of the individual states. With us the law has been settled adversely to the present contention of the defendant in a number of cases. S. v. Hyman, 164 N.C. 411; S. v. Lytle, 138 N.C. 738; S. v. Publishing Co., 179 N.C. at 724, and the recent case of S. v. Pulliam, ante, 681, from Forsyth County.
It is not necessary, in view of what has already been said, to consider exceptions to the charge of the court, as they may not again be presented, nor will we discuss the other exceptions, it being useless to do so for the same reason.
There was error in admitting Hambright's testimony which entitles defendant to another trial.