State v. Allen, 190 N.C. 498 (1925)

Nov. 18, 1925 · Supreme Court of North Carolina

190 N.C. 498

STATE v. DORSEY ALLEN.

(Filed 18 November, 1925.)

Intoxicating Liquors — Spirituous Liquors — Instructions—Appeal and Error — Evidence—Questions íor Jury — Statutes.

Upon tbe trial under an indictment for violating tbe probibition law, there was evidence tbat an illicit still was found without connecting its operation with tbe defendant, but tbat a coat was found thei'e with a receipt with defendant’s name on it in one of tbe pockets: Beld, an instruction that tbe name on tbe receipt was sufficient evidence tbat it was tbe property of defendant, and it should be considered to identify tbe coat, is an expression of an opinion upon tbe weight and credibility of tbe evidence inhibited by statute, and reversible error. O. S., 564.

Appeal by defendant from McElroy, J., at August Term, 1925, of Moore.

Criminal prosecution tried upon an indictment charging tbe defendant (1) with tbe unlawful manufacture of spirituous liquors or intoxicating bitters (0. S., 3367), and (2) with having1 or keeping in bis possession, for tbe purpose of sale, certain spirituous; vinous or malt liquors (C. S., 3379), contrary to tbe statutes in such cases made and provided, etc.

From an adverse verdict and sentence of six months on tbe roads, tbe defendant appeals, assigning errors.

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

W. B. Glegg for defendant.

Stacy, C. J.

A still was discovered in tbe upper' end of Moore County on 26 November, 1924. Tbe officers found a coat at tbe still site, and in one of tbe pockets was a receipt, made out in tbe name of tbe defendant, Dorsey Allen, for three years subscription to tbe Southern Planter, a newspaper published at Richmond, Ya. Tbe defendant was not seen at tbe still, though some one, other than tbe defendant, ran away as tbe officers approached.

Tbe court instructed tbe jury as follows:

“Tbe court charges you, gentlemen, tbat tbe name on tbe receipt is sufficient proof tbat tbe receipt was tbe property of tbe defendant, Dorsey Allen, and tbat its, purpose is to identify tbe coat and it is admitted for tbis purpose, and if you find tbat tbe receipt is sufficient evidence to identify tbe owner of tbe coat, tben you will return a verdict of guilty.”

Tbe Assistant Attorney-General, witb bis usual candor, frankly confesses bis inability to defend tbis instruction. It contains an expression of opinion, in violation of C. S., 564, as to tbe sufficiency and weight of tbe evidence. S. v. Hart, 186 N. C., 582; Speed v. Perry, 167 N. C., 122. Tbe error, of course, was unintentional. It is just one of those casualties which, now and tben, befalls tbe most circumspect in tbe trial of causes on tbe circuit. S. v. Kline, ante, 177.

New trial.