State v. Winner, 153 N.C. 602 (1910)

Oct. 6, 1910 · Supreme Court of North Carolina

153 N.C. 602

STATE v. M. L. WINNER.

(Filed 6 October, 1910.)

1. Spirituous Liquors — Secret Sale — Devices—Notice—Corroborative Evidence.

By aiding in the sale of spirituous, etc., liquors in prohibited territory, a person is as guilty as the principal; and evidence tending to show that certain devices for the secret traffic in spirituous liquors, etc., were constructed in defendant’s place of business and of such character as he would naturally be aware, is competent in corroboration.

2. Objects and Exceptions — Improper Remarks.

Exceptions to remarks made by the solicitor to the jury as improper, relating to the defendant’s not testifying, etc., are governed by Weddington’s case, 103 N. C., 364.

Appeal by defendant from Coolce, J., at the April Term, 1910, of New HaNoveb,

From a verdict of guilty and the judgment pronounced thereon the defendant appealed to this Court.

Attorney-General Bickett and G. L. Jones for the State.

L. Clayton Grant for defendant.

Manning, J.

Tbe defendant was indicted and convicted for selling whiskey without license in the city of Wilmington. Tbe prosecuting witness testified to the sale tó him and described minutely the circumstances under which be purchased, to-wit: that be bought the whiskey in the defendant’s place of business, in a cut-off compartment and by a dumb waiter. He made known bis presence and bis thirst; a tin cup appeared in a bole in the wall; be put in the money; the cup disappeared, and a bottle of whiskey appeared in a few seconds. Another witness for the State was permitted, over defendant’s objection, to testify in corroboration that be bad bought in the same pláce and by means of the same device, prior to the purchase by the prosecuting witness, to whom the particular sale was charged in the indictment to have been made. We do not see why this evidence was not competent. It was restricted by bis Honor to the purpose of corroboration. Its purpose was definitely to fix upon the defendant the knowledge that the illicit traffic was being carried on in bis place of business. It is inconceivable that such device could be arranged in defendant’s place of business without bis knowledge and aid, and if be aided in the commission of this offense — a misdemeanor by the law — he was guilty as a principal. S. v. Kittelle, 110 N. C., 560; S. v. McMinn, 83 N. C., 668. Tbe other exception argued by the learned counsel of the defendant is directed to the failure of bis Honor to properly correct the -effect of certain comments of the solicitor in bis argument to the jury. Tbe remarks complained of are similar to those of the counsel for the State in Weddington's case, 103 N. C., 364, and which this Court held were permissible to the prosecuting attorney. There was no attempt to use the failure of the defendant himself to testify in bis own behalf to bis prejudice, nor was such failure commented upon by the solicitor. We think bis Honor’s instruction upon the matter sufficient. In our opinion, the defendant has no just cause of complaint of bis Honor’s rulings.

No error.