| N.C. | Oct 14, 1953
The assignments of error brought up on this appeal raise two questions:
1. Is the search warrant, issued under the circumstances shown, valid ?
2. Is there error in the charge of the court to the jury?
I. The subject of the requirements of law in issuance of a search warrant for searching for intoxicating liquors has been treated by this Court cotemporaneously herewith in the case of S. v. Brady, ante, 404, numbered 6685 in the Superior Court. It is there held that the provisions of G.S. 18-13 rather than G.S. 15-27 control. See also S. v. McLamb, 235 N.C. 251" court="N.C." date_filed="1952-03-17" href="https://app.midpage.ai/document/state-v-mclamb-1374922?utm_source=webapp" opinion_id="1374922">235 N.C. 251, 69 S.E. 2d 537.
And it is provided in G.S. 18-13 that upon information furnished under .oath by an officer charged with the execution of the law, before a justice of the peace, recorder, mayor, or other officer authorized by law to issue warrants, that he has reason to believe that any person has in his possession, at a place or places, specified, liquor for the purpose of sale, a warrant shall be issued commanding the officer to whom it is directed to search the place or places described in such information. A sheriff is such an officer charged with the execution of the law. Then the question arises: Is the clerk of Superior Court such “other officer authorized by law to issue warrants?” We so hold. G.S. 7-395.
The search warrant here purports to be signed in name of “E. M. Underwood, Clerk of Superior Court and ex officio Clerk County Criminal Court of Lee County.” And, as stated by Johnson, J., in S. v. Honeycutt, 237 N.C. 595" court="N.C." date_filed="1953-04-29" href="https://app.midpage.ai/document/state-v-honeycutt-1386064?utm_source=webapp" opinion_id="1386064">237 N.C. 595, 75 S.E. 2d 525, “the rule is that in the absence of evidence to the contrary it is presumed that the acts of a public officer are in all respects regular,” citing S. v. Gaston, 236 N.C. 499" court="N.C." date_filed="1952-11-19" href="https://app.midpage.ai/document/state-v-gaston-1345145?utm_source=webapp" opinion_id="1345145">236 N.C. 499, 73 S.E. 2d 311; S. v. Rhodes, 233 N.C. 453" court="N.C." date_filed="1951-04-11" href="https://app.midpage.ai/document/state-v-rhodes-1334082?utm_source=webapp" opinion_id="1334082">233 N.C. 453, 64 S.E. 2d 287; S. v. Wood, 175 N.C. 809" court="N.C." date_filed="1918-05-08" href="https://app.midpage.ai/document/state-v-wood-6696332?utm_source=webapp" opinion_id="6696332">175 N.C. 809, 95 S.E. 1050" court="N.C." date_filed="1918-05-08" href="https://app.midpage.ai/document/state-v--wood-3672127?utm_source=webapp" opinion_id="3672127">95 S.E. 1050.
II. Do the assignments of error based on exceptions to the charge show prejudicial error ?
A careful consideration of it leads to-the conclusion that in so far as the charge relates to the indictment in case No. 6909 for having in possession “one pint of intoxicating whiskey, for the purpose of sale” error is not shown. But it seems that thé charge relating to the indictment in case No. 6908 for having in possession “five pints of intoxicating whiskey for the purpose of sale” is vulnerable to the challenge in respect to. burden of proof. It is pointed out that the charge concludes with this instruction : “If the State has satisfied you upon the evidence of the defendant’s guilt, in this case dealing with five pints of intoxicating whiskey, then it is your duty to so find. If the State has failed to so satisfy you, then it is your duty to render a verdict of not guilty.” Exception thereto is well taken. See S. v. Brady, ante, 404 (Superior Court No. 6685).
Hence for reasons stated there must be a new trial in No. 6908. iind in No. 6909 the verdict of the jury will stand, but since the sentence imposed in the judgment of the court below is made to begin on the expiration of the sentence in No. 6908, and the sentence in No. 6908 is made to begin on the expiration of the sentence in No. 6685, in each of which, Nos. 6685 and 6908, a new trial is ordered, the judgment becomes uncertain and indefinite. Hence the judgment in No. 6909 is set aside, and the case remanded for proper sentence on the verdict rendered.
In No. 6908 — -New trial.
In No. 6909 — Remanded for judgment.