Thе defendant places chief stress on a group, of exceptions which challenge the competency of vital evidence offered by the State on the ground that it was obtained under an illegal search warrant. The seаrch warrant was issued under substantially these circumstances: A peace officer appeared beforе the Deputy Clerk of the Greensboro-Municipal County Court and informed her, without being sworn, that he had reason to believе the defendant, who lived at 404 East Street in the City of Greensboro, had intoxicating, liquor in her possession for the purposе of sale. The Deputy Clerk then prepared the complaint-affidavit and search warrant, after which the applying officer swore to and signed the complaint-affidavit, and then the issuing Deputy Clerk signed the affidavit and warrant. The evidence is not clear whether the officer who applied for the search warrant signed before or after the oath was admin *740 istered, but-all the evidence shows that the oath was administered prior to signing by the Deputy Clerk who issued the wаrrant.
Here the defendant’s exceptions rest solely on the fact that the oral information of the officer рrocuring the warrant was furnished to the Deputy Clerk prior to taking the oath. The exceptions are untenable. The рrocedure followed fulfills the requirements of the controlling statutes. G.S. 18-13 and G.S. 15-27 as amended. See also
S. v. Gross,
Next, the defendant challenges the sufficiency of the evidence to carry the case to the jury over her motion for judgment as of nonsuit. The evidence may be summarized as follows: After the officers, with search warrant, gained entrance to the defendant’s home, one of them “glimpsed” her “running out a door through the kitchen.” He followed and caught her while she was in the аct of pouring the contents of a quart jar into the commode. The officer wrested the jar from her before it wаs entirely emptied. She did not then deny ownership, but only claimed the fluid was not liquor. The officer testified the jar contained nontax-paid liquor. No tax stamp of any kind was on it. The jar, with contents, was introduced in evidence. Two men who were nоt residents of the house were there at the time, and small glasses with the odor of liquor were on the table in front of them. The men appeared to have been drinking “considerably.” Half a case of 7-Up and half a case of Coca-Cola were found in the kitchen. One of the officers said he had been observing the defendant’s residence on рrior occasions, most recently the night before, and “had seen lots of people going in sober and coming out drunk. . . . some walking, some ... in cars, and some in taxis. . . . (he) had seen this at least three times before . . . search.”
This evidence was sufficient to take the case to the jury, and the court below properly overruled defendant’s motion for judgment as of nonsuit.
S. v. Hill, ante,
704;
S. v. Merritt,
The defendant also assigns error in respect to the portion of the charge dealing with the failure of thе defendant to take the stand and testify in her own behalf. As to this, the court charged the jury as follows:
“The defendant, lady and gentlemen, did not go upon the stand and did not offer evidence. This was her prerogative. She has a right to rely upon what shе conceives to be the weakness of the State’s evidence, and by her plea of not guilty challenges both thе truthfulness and sufficiency of the testimony.”
It may be conceded that this instruction was incomplete and erroneous for fаilure of the court to go further and tell the jury that the failure of the defendant to testify “shall not create any presumption against” her. G.S. 8-54.
S. v. McNeill,
However, verdicts and judgments are not to be set aside for mere error and no more. To accomplish this result it must be made to appear not only that the ruling complained of is erroneous, but also that it is material and prejudicial, and that a different result likely would have ensued, with the burden being on the appellant to show this.
S. v. Bryant, post,
745 (filed this day);
S. v. Perry,
An over-all study of the charge discloses that the trial court in charging on the law as to the presumption of innocence gave special stress to its application to the defendant’s situation. Three timеs during the course of the charge the court adverted to this phase of the case, each time telling the jury in effect that the defendant’s plea of not guilty raised in her behalf a presumption of innocence, and that the burden of proof was on the State to overcome this presumption and prove her guilt beyond a reasonable dоubt. And the court concluded its charge by telling the jury that if they had a reasonable doubt as to her guilt, it would be their duty “to give her the benefit of it and acquit her.”
"With the defendant’s exceptions relating to the validity of the search warrant and to the competency of the evidence discovered thereunder resolved against her, it is not perceived how shе, in view of this record, could hope for acquittal in another trial.
While the instruction as given is disapproved, as being incomplete, nevertheless we conclude that on the record as here presented prejudicial errоr has not been made to appear. 8. v. Bryant, supra.
We have examined the rest of the defendant’s exceptive assignments and find them to be without substantial merit. The verdict and judgment below will be upheld.
No error.