87 S.E. 227 | N.C. | 1915
Criminal action for unlawfully selling liquor, commenced before the police court of the city of Asheville and carried by appeal of defendant to the Superior Court, where he was convicted and appealed to this Court from a judgment that he be imprisoned for eight months and work on the public roads.
After stating the case: The first exception challenges the validity of the provision of the search and seizure law, being Laws 1913, ch. 44, which makes the possession of more than one gallon of spirituous liquorprima facie evidence of keeping it for sale in violation of law. It is too late now to question the constitutionality of this clause of the statute. A similar provision was held to be valid in S. v. Barrett,
There could be no more pronounced and emphatic utterance in favor of the validity of those laws than we have employed in that case. See, also, S. v.McDonald,
The several exceptions directed against the competency of what was said by defendant's wife to him, and his conduct on the occasion, indicating his guilt, which was admitted by the court, are clearly without any merit. The evidence was to the effect that the officers had searched the premises of the prisoner and found there two keys containing 4 1/2 gallons and 2 quarts of liquor and two empty kegs. McIntosh brought up four bottles of corn liquor from the basement. Defendant's house was removed from the street, which was itself obscure, "being hardly a street." Defendant rented rooms in the house to nonresidents — negro men and women from Florida. At the time of the search the prisoner said that liquor had been sent there before, but was brought there by one of his boarders named Brown. The solicitor asked C. N. Lominac, (759) the witness who had given the foregoing testimony, the following questions, on redirect examination:
Q. Now, I will ask you what he said about the liquor in your presence, or what was said by his wife in his presence? *851
The following question was first put to the witness by the court:
Q. You can say anything he, himself, said — what the defendant said.
A. Mr. McIntosh brought these two kegs of whiskey and set it down on the porch, and Lawson Randall (defendant), said, "That is Brown's whiskey," and his wife said, "What Brown?" When defendant said, "That is Brown's whiskey," his wife said, "What Brown?" He said, "The Brown downstairs." She replied, "You know there isn't any Brown here. I have tried to get you to quit selling this liquor, and now I am through. There is no Brown here at all," and Lawson just dried up and walked away.
The defendant in apt time objected to all this testimony; on the ground that it was the wife's testimony against her husband. The court admitted it, and defendant excepted.
She said, "Now, I can't help it. You can just go," and she accused him of selling liquor. "I have kept you in my house and I have kept you up, and you never would do right, and now I am through."
The wife was not offered by the State as a witness and never testified as such against defendant.
Defendant told his wife that she hadn't been there for some time. In reply to that, she said, "Yes, sir, I have been working among white folks and in white folks' kitchens to keep you up, and you came to me for money the other day and told me you were going to get a job."
J. B. McIntosh testified: "I was a police officer and was present and helped search the premises of the defendant. Found liquor downstairs in the basement. It was in two kegs. I do not know how much kegs held — some say 4 1/2 gallons and some say 5." Witness identified the two kegs. Found six in the front room, the northeast corner of the building. Searched the front part and found three or four kegs. "I think four empty kegs in the front room; that was the dining-room, part of it. In the back room, which is in the northeast corner of the building, back of the dresser I found one of these kegs with dust on it. In the northwest part of the building is a hallway about 6 feet wide, and behind that hallway is all sorts of junk, and in the bottom of a big barrel I found the other keg, all covered up with trash. Randall said it was not his, but a boarder's. He called the name of the boarder, and I think it was Brown. Randall's wife was upstairs, and she was sitting on the back porch crying. She broke down when I came out to them, and made about the same statement as that related above, to wit, the conversation between his wife and the defendant."
Question (by the solicitor): What did she say? A. She told (760) him that she had kept him there. Defendant said whiskey wasn't his. *852
Q. What was said to him by his wife in your presence? A. She told him that she had upheld him for quite a while and tried to help him get the home, and that she had worked like a poor negro and tried to keep him up; and she told him that he ran around and boot-legged and kept them down, and that she was through with him. He did not deny it.
Defendant's objection to all this evidence was overruled and he excepted.
We do not see why this testimony was not competent. Conversations between husband and wife are not privileged as confidential, so as to prevent a third person, who overheard them, from being competent as a witness to relate them to the jury. S. v. Wallace,
In the Wallace case Justice Allen, has, with his usual diligent and discriminating research, given us the pith of the learning upon this subject. He there says: "The authorities seem to be uniform that a third person may testify to an oral communication between husband and wife, although his presence was not known; but there is much diversity of opinion as to the right to introduce a writing from one to the other in the hands of a third person. The cases are collected in the notes toGross v. State, 33 L.R.A. (N.S.), 478, and Hammons v. State, 3 A. and E., Anno. Cases, 915. It is difficult to find a satisfactory reason for the distinction. The rule of the common law is based on the confidential relationship existing between husband and wife, and the importance to the public of maintaining this relationship, deeming it wiser and more conducive to the public interest for some particular evidence to be suppressed than to require the husband or wife to disclose a communication between them, as to do so `might be a cause of implacable discord and dissension between the husband and wife, and a means of great inconvenience.' S. v. Brittain,
The same rule of evidence was applied in Toole v. Toole,
And mind you, that was a divorce suit, where the Legislature has been so particular to safeguard confidential communications between husband and wife as well as the sacredness of the marriage tie and the preservation of marital confidence and harmony.
In S. v. Record,
The last exception is without any merit. When the court asked counsel whether they desired to address the jury, if the question was improper or prejudicial, and we are unable to see that it was under the circumstances, defendant should have objected at once, and not have waited until he could take a chance on the verdict, and then, after he had lost by his conviction, object for the first time. He who would save his rights must be reasonably prompt and diligent in asserting them. It was too late after verdict to enter an objection, if it would have been good had it been made in due time. S. v. Tyson,
We have given careful consideration to all the exceptions, and find that no error was committed at the trial.
No error.
Cited: S. v. Bean,
(763)