110 S.E. 591 | N.C. | 1922
The defendant was indicated in three counts:
1. Having in his possession a quantity of intoxicating liquors for the purpose of sale, to wit, nine quarts of grape brandy.
2. Transporting the same from one point within the State to another point in the State.
3. The receipt of the same in fifteen days.
General Verdict of guilty. Judgment. Appeal by defendant. *732 The evidence for the State was that the chief of police of Elizabeth City, accompanied by two officers, about 11 o'clock at night, went to the house where Bessie McGee lived. Soon after they arrived an automobile drove up and three persons got out, to wit, the defendant (Roscoe Simmons) and two others. Simmons was carrying in his hand a grip and went with it into the house. Sending one of (685) his men to the back door of the house, the chief of police, with the other officer, immediately followed the parties into the house. The defendant seeing the officers entering at the front attempted to make his escape at the rear, though he testified that he went to the back porch to get some water. The grip that Simmons carried into the house, when examined by the officers, was found to contain eight quarts, which smelt like peach brandy, and they testified that in their opinion it was intoxicating liquor. The officers arrested Simmons and Bessie McGee, and took charge of the grip with the eight quarts of liquor, which was introduced in the evidence by the State and under objection by the defendant, the jury was permitted to smell it and taste it, if they desired, to determine whether it was intoxicating or not. The officers at the time of the arrest had no warrant for the arrest of the parties, and though something was said in the evidence about a search warrant, it is admitted that it was not in legal form, and is not considered.
The defendant presents two points: (1) That the liquor having been obtained on an illegal search warrant was not admissible as evidence; (2) that the court committed error in permitting the jury to smell and taste the liquor.
The officers found the liquor in actual possession of the defendant, with grounds, in their judgment, to believe that it was an illegal article, and had a right to seize the same. S. v. Campbell,
If intoxicating, as the jury found upon the testimony of the officers, corroborated possibly by their own sense of taste and smell, the defendant was properly found guilty, for he was illegally transporting spirituous liquor, and also under C. S. 3379, he was prima facie guilty of having more than a gallon in his possession for the purpose of sale. *733
The defendant in his evidence contented himself with testifying that he had nothing to do with the suit-case, and knew nothing of its contents, and that Satterfield carried the suit-case into the house, but he did not testify that he was carrying this liquor for his own use. S. v. Coleman,
The capture of eight quarts, which the jury found was in the possession of the defendant, raised prima facie the presumption that it was illegally in his possession and its capture was not illegal. S. v.Campbell, supra. To the same effect Adams v. New York, 192 (686) U.S. 585; S. v. Bradley,
In S. v. Bradley, supra, it is held: "If, in the case of a seizure of intoxicating liquors without a warrant, a respondent is arrested at the time of the seizure and before the issuance of the warrant, even if such arrest is illegal, it in no way affects the validity of the complaint and warrant, and cannot be taken advantage of by a respondent charged with having intoxicating liquors in his possession for an unlawful purpose, either before or after conviction."
In S. v. Krinski, supra, it is said: "On a prosecution for keeping for sale intoxicating liquors without a license, it was proper to admit in evidence liquors which had been seized, irrespective of the legality of the warrant."
The defendant was not the owner of the house. No question arises as to the validity of a search warrant. The defendant was simply "caught in the act" with the goods upon him, and the officers under the authority of our statute took the prisoners and the illegal goods before a magistrate and proceeded regularly.
In Adams v. New York,
Suppose instead of a grip the defendant and another had been seen to enter the house with pistols, and soon thereafter a shot was heard, and upon the officers entering the building one of the men was found lying dead on the floor and the other was caught attempting to escape from the rear. Is it possible that the finding of the pistol and of the dead man could not be put in evidence because there was no search warrant? This would be carrying the protection of the illegal and clandestine (687) violation of law, by a technicality, to an extent probably heretofore unread of in a court of justice.
In this case the defendant entered the house carrying a grip full of intoxicating liquor and was captured at the back door. What has a search warrant to do with this state of facts? The defendant was caught "in the act," and has made no explanation, satisfactory to the jury, to account for his connection with the transportation of the liquor in the grip which he carried into the house.
No error.
Cited: S. v. Godette,