State v. Maynor, 226 N.C. 645 (1946)

Oct. 30, 1946 · Supreme Court of North Carolina

226 N.C. 645

STATE v. JOHN MILFORD MAYNOR and JOHN MILFORD MAYNOR v. C. C. TART, Sheriff.

(Filed 30 October, 1946.)

1. Intoxicating Liquor § 8—

Where a defendant has been convicted of illegal transportation of nontax-paid liquor, the court may at a subsequent term enter an order mine pro time for the forfeiture and sale of the vehicle used for such transportation. <J. S., 1S-4S and 18-6.

S. Same—

An order of condemnation and sale of a vehicle used in illegal transportation of intoxicating liquor is no part of the personal judgment against the accused although dependent upon his conviction, and by statutory provision claimants are entitled to a hearing to determine their rights.

Appeal by defendant in criminal prosecution, and plaintiff in civil action, from Carr, J., at August Term, 1946, of SampsoN.

Criminal prosecution upon warrant charging John Milford Maynor with having in his possession nontax-paid whiskey for purpose of sale and transporting it contrary to law, and claim and delivery proceeding by accused to recover automobile from sheriff, consolidated by consent and heard together as both actions are related to the same subject matter.

I. The CeimiNal Case:

A. On 1 February, 1946, John Milford Maynor was arrested in the Town of Clinton and charged with having in his possession and transporting in an automobile, in violation of law, nontax-paid intoxicating liquor. At the same time the sheriff of Sampson County took into his possession the automobile, belonging to the defendant, and in which the said intoxicating liquor was being transported.

B. Upon trial in the Eecorder’s Court, the defendant was found guilty and sentenced to six months on the roads. The automobile seized by the sheriff was ordered confiscated and sold according to law.

C. On appeal to the Superior Court, the defendant was again convicted at the May Term, 1946, and sentenced to six months on the roads. “Eoad sentence suspended and defendant placed on probation for a period of three years on condition the defendant pay the costs.”

D. Tbe defendant was released upon payment of tbe costs.

II. The Civil Action:

A. Tbe defendant’s automobile remained in tbe possession of tbe sheriff from tbe time it was seized until after tbe May Term of court, wben John Milford Maynor instituted claim and delivery proceeding to obtain its possession.

E. Tbe sheriff did not replevy, but demurred to tbe complaint and moved for judgment on tbe pleadings. At tbe same time, notice was served on tbe plaintiff that motion would be lodged in tbe companion criminal case for judgment of forfeiture and sale of tbe automobile.

C. At tbe August, 1946, mixed term, Sampson Superior Court, judgment of forfeiture and sale was entered nunc pro tunc in tbe companion case of State v. John Milford Maynor, and tbe demurrer and motion for judgment on tbe pleadings allowed in tbe claim and delivery proceeding, as there were no intervening rights of third persons.

From this judgment, John Milford Maynor appeals, assigning errors.

Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State, appellee.

Mack M. Jernigan and Paul D. Herring for defendant-plaintiff, appellant.

Jeff D. Johnson, Jr., for defendant, C. C. Tart, Sheriff of Sampson County.

Stacy, C. J.

As no judgment of forfeiture or confiscation was entered at tbe trial term in tbe criminal prosecution, as required by tbe statutes on tbe subject, G. S., 18-48 and 18-6, it was proper to enter appropriate judgment therein nunc pro tunc at a later term. Ferrell v. Hales, 119 N. C., 199, 25 S. E., 821; McIntosh on Procedure, page 692, et seq. Moreover, a court has “tbe right to amend tbe records of any preceding term by inserting what has been omitted, either by tbe act of tbe Clerk or of tbe Court; and a record so-amended stands as if it bad never been defective, or as if tbe entry bad been made at tbe proper time.” S. v. Warren, 95 N. C., 614. See Strickland v. Strickland, 95 N. C., 471; Walton v. Pearson, 85 N. C., 35; McIntosh on Procedure, page 732, et seq. Tbe order of condemnation and sale of tbe vehicle seized is perforce no part of tbe personal judgment against tbe accused, albeit both are dependent upon bis conviction. S. v. Hall, 224 N. C., 314, 30 S. E. (2d), 158; 30 Am. Jur., 551.

Indeed, since tbe statute provides for a separate bearing to determine tbe rights of claimants to “any wagon, buggy, automobile, water or aircraft, or other vehicle,” used in transporting intoxicating liquor in violation of law, it would seem that judgment of forfeiture or confiscation might well have been entered in the claim and delivery proceeding, treating it as a petition in the criminal case, S. v. Ayres, 220 N. C., 161, 16 S. E. (2d), 689, but as to this we make no present ruling, as it is unnecessary to do so. In re State v. Gordon, 225 N. C., 241, 34 S. E. (2d), 414; S. c., 224 N. C., 304, 30 S. E. (2d), 43; Motor Co. v. Jackson, 184 N. C., 328, 114 S. E., 478; 30 Am. Jur., 551.

In the absence of a more substantial showing on the part of the appellant, the judgment will be upheld.

Affirmed.