State v. Sessoms, 179 N.C. 717 (1920)

Feb. 18, 1920 · Supreme Court of North Carolina

179 N.C. 717

STATE v. H. R. SESSOMS.

(Filed 18 February, 1920.)

Appeal and Error — Courts—Discretion—Evidence.

Upon trial for selling intoxicating liquors in violation of our statute, after tbe defendant and bis witnesses bad testified in bis bebalf and in rebuttal, a State’s witness testified that be was present and bad seen tbe sale charged. Tbe defendant offered himself and bis witness to contradict tbis witness, and tbe Court refused, stating in tbe presence of tbe jury tbat tbe defendant and bis witnesses bad already testified as to tbis fact. Held, tbe refusal of tbe judge was a matter witbin bis discretion in tbe conduct of tbe trial, and there being no evidence of its abuse, it was not reviewable on appeal.

INDICTMENT for selling liquor, tried before Lyon, J., at November Term, 1919, of Ttbeell.

Tbe defendant was convicted, and appealed to tbe Supreme Court.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

Meekins & McMullan and J. N. Alexander for defendant.

Brown, J.

Tbe defendant was convicted under a bill charging tbe sale of spirituous liquor to one Anthony Spruill, with a count for having them in bis possession for purposes of sale. Anthony Spruill testified tbat tbe defendant sold him a pint of intoxicating liquor, for which he-paid him $2.50. Tbis was denied by tbe defendant, who was examined as a witness in bis own bebalf. In rebuttal, one "William Marriner testified for tbe State tbat be went with Anthony Spruill to tbe defendant’s bouse, and also bought from tbe defendant at tbe time a pint of" liquor, and paid him $2.50. Tbe State closed.

Tbe defendant then offered bimself as a witness, and other witnesses,, for tbe purpose of showing tbat William Marriner did not come to bis bouse with Anthony Spruill, and tbat be sold Marriner no liquor that-night. His Honor stated, in tbe presence of tbe j’ury, tbat tbe defendant, and each of bis witnesses, in their examination, bad been specifically-asked to name each of those present at tbe bouse, and they bad done so,, and they bad denied tbat William Marriner was there, or tbat be bad gotten any liquor, and tbat there was, therefore, no need for them to-return to tbe stand to again deny it, and in tbe exercise of bis discretion declined to permit them to again go on tbe stand. To tbis ruling by bis Honor defendant excepted,

Tbis is tbe only exception in tbe record. It appears tbat counsel for tbe defendant, in arguing tbe case to tbe jury, referred to tbe fact that. the testimony of William Marriner had beeh denied by the defendant and his wife, and each of his witnesses who had testified that he was not there that night, and of course if he was not there he could not have bought any liquor, and so argued to the jury.

The mode of conducting the trial is in the discretion of the trial judge, and the exercise of discretion is not reviewable unless it appears that there has been an abuse of the discretion, in such way as to be prejudicial to the defendant. S. v. Cobb, 164 N. C., 422; S. v. Moore, 104 N. C., 743; S. v. Hodge, 142 N. C., 676; 16 Corpus Juris, 806; S. v. Sutherland, 100 S. E., 187.

We see no evidence of an abuse of discretion, as the court stated to the jury practically that the defendant and his witness had denied that William Marriner was at the house, or that he had gotten any liquor from the defendant. In addition, counsel for the defendant argued this to the jury. The matter of allowing the defendant and his witness to be recalled was in the sound discretion of the judge, and we see no abuse of such discretion.

No error.