State v. . SmithState v. . Smith
- Reporters:
- , ,
- Before:
- Clark
The defendant moved for a nonsuit. The evidence against the defendant was in substance as follows: The defendant lived about a half mile from the still. When the three men at the still discovered the officers they ran in the direction of Officer Groce. He testified that he saw two white men and one negro; two of whom ran towards him; he threw his flashlight on them, which caused the one in the rear to dodge and run back аcross a ditch and into a pond of water; he saw a track in the ditch where the man had run which appeared to have been made by tennis shoes. After destroying the liquor and capturing the still, the officers met the defendant in the road near his house about 1 a.m. The defendant had on tennis shoes and overalls. The shoes and the bottom of the overalls were wet, and upon arresting him the officers found on his person a quinine bottle of whiskey, which they called a “testing viаl.” The motion to nonsuit was properly denied.
From all the circumstances the jury were entitled to draw the inference that the defendant was guilty of assisting or аiding in the manufacture of the whiskey which was captured. Certainly the court was not authorized by a motion to nonsuit to adjudge that there was no evidence.
The defendant excepted also that the court ruled out testimony as to how much cotton and corn the defendant had made that year. This testimony was irrelevant, especially as the defendant admitted that he was a farmer.
These exceptions were not properly assigned, for they were not sеt out in the assignment of error as required by the uniform practice and decisions of this Court, but each assignment of error merely refers to the pages wherе the excluded evidence and the parts of the charge excepted to can be found, leaving us to grope through the record to find them. This is contrary to the requirements of the rule which the Court has found necessary to prescribe and has often called attention to. Lee v. Baird, 146 N.C. 361, and cases cited in the 2 Anno Ed. It is necessary that for the orderly and prompt dispatch of business the simple requirements of the Court shall be observed by parties who ask that the action of the court below shall be reviewed on appeal and counsel should abserve [observe] these requirements.
The defendant also assigned error in the same irregular way, without setting forth the paragraph referred to, that the court erred in its charge. Not to be used as a matter of precеdent, but we will, however, notice both the charge and the evidence thus insufficiently assigned as error: The court in reciting the testimony of the officers said that “upon approach of the officers they ran, and one of them ran within ten steps or ten feet, I have forgotten which, but you gentlemen will remember testimony of the officer who testified.” This was not objectionable as singling out, or giving any particular weight to any testimony.
The defendant also excepted beсause in reciting the testimony the court stated that “when the defendant was arrested he had on white overalls and they were wet, and that he had on tennis shoes, and they were wet, and that the tennis shoes that he had on corresponded to the tracks made around the still.” In this we cannot see how the court cоuld have recited this testimony without stating it.
The defendant also excepted in the same irregular way, without referring to the charge except by citing us to the рage, to the following charge: “I instruct you, gentlemen of the jury, as the defendant, his wife and his brother, and his brother‘s wife have testified in the case, it is your duty to receive their testimony with a degree of caution and to closely and carefully scrutinize it, and scan it because they are interested in your verdict.” This was excepted to, but the judge in the same breath, without pausing, proceeded to say, “But if after such scrutiny you are satisfied they are telling the truth, it will then be your duty to give thеir testimony as much credibility as you would give a disinterested witness. Credibility means worthiness of belief. You,
The defendant also assigned as error in the same irregular way without quoting the words, the statement by the judge of the contentions of the State arising upon the evidence.
The defendant also excepted for refusal to set aside the verdict because against the weight of the evidence, which is not reviewable.
The defendant also presented on the argument of the appeal an еxception to the charge, though not made in the record or assigned as error, that the court did not charge the jury that by a local law the officеrs were entitled to a reward of $50 each for an arrest in a case of this kind. It does not appear that the court did not make such charge, and thе defendant cannot be heard on assignment of error which he did not make even if it had appeared that the judge did not so charge. The local аct was not called to the attention of the judge, nor was he requested to charge on it, and the credibility of the officers was not impeached by аny cross-examination nor by any impeachment of their testimony nor, as in the case of the defendant‘s relatives, by reason of the fact of their being оfficers as the relatives were by their relationship.
The defendant further excepted because the jury found the defendant not guilty of manufacturing whiskey, but guilty of aiding and abetting. This being a fact, as we must take the verdict to be, there is no reason why the jury should not so find.
It is true that all who participate in illicit distilling are princiрals in the manufacture of liquor (S. v. Killian, 178 N.C. 753), and whether the defendant was guilty of manufacturing or aiding and abetting in
Upon the whole case, giving the defendant every reasonable and possible exception, we find
No error.
Cited: S. v. Grier, 184 N.C. 725; S. v. O‘Neal, 187 N.C. 24; S. v. Adams, 191 N.C. 528; S. v. Peterson, 228 N.C. 739.