State v. Cobb, 250 N.C. 234 (1959)

April 29, 1959 · Supreme Court of North Carolina

250 N.C. 234

STATE v. ALVIE M. COBB.

(Filed 29 April, 1959.)

1. Criminal Law § 103—

“Míe act of -the court in submitting 'to tbe jury only one count in the bill of indictment has the effect of a directed verdict of not guilty on the other count contained therein.

2. Criminal Law § 79—

Where defendant aiptly moves to suppress evidence on the ground that it was illegally procured, and the State is permitted to introduce in evidence, over defendant’s objection, whisky found during a search of defendant’s home, and the iStote does not introduce the search warrant in -evidence, or any evidence that ithe warrant w>as lost, or as to its coil tents, or -that it was duly issued, a new trial must be awarded.

Appeal by defendían! from Johnston, J., December Term 1958 of RANDOLPH.

Criminal prosecution upon a bill of indictment with two- counts. The first count charges the unlawful .possession of -alcoholic beverages upon which the taxes imposed by the law© of Congress -o-f the United States or by (the lawls of this State have not been paid, a violation of G.S. 18-48. The second count charges the unlawful -possession of illicit -liquors for ©ale, ta violation of G.S. 18-50.

Plea: Not Guilty. Verdict: Guilty as to- -the first count — no mention in verdict 'as to second count.

From a sentence of imprisonment, defendant appeals.

Malcolm B. Seawell, Attorney General and T. W. Bruton, Assistant Attorney General, for the State.

Hammond ■& Walker and Coltrane & Gavin for defendant, appellant.

Per Cueiam.

If.appears from the Judgejs’.charge to the jury that defendant’s wife was changed in a separate bill of indictment with a violation of G.S. 18-48 — it does not -appear as to whether or not she w>as charged with a violation of G.S. 18-50 —, and’ that the two bills of indictment were consolidated for trial. It clearly -appears from the Judge’s charge ¡that he submitted only the first •count in defendant’s Ibill of indictment to the jury. This had the effect of a directed verdict of Not Guilty on the -second count in the defendant’s bill of -indictment. S. v. Love, 236 N.C. 344, 72 S.E. 2d 737. The Record does not show the jury’s verdict as to defendant’s wife.

Before pleading to -the bill of indictment, the defendant moved to ¡suppress the evidence on the ground that -it was illegally procuredi The eourt denied the motion, 'and defendant excepted. Defendant then pleaded Not Guilty. The search warrant was not introduced in evidence, nor was any evidence introduced that it was lost. There was no evidence as to its contents. There was no evidence that it was duly issued. There was no evidence as to who issued it. The Court permitted the State, over the defendant’s objection and exception, to introduce in evidence a jar containing whisky, which whisky was found during the search ¡of defendant’s home. Defendant ¡assigns this as error. The Attorney General, with his usual frankness, -concedes error.

The verdict and judgment are vacated, -and a new trial on the first count in the bill of indictment is ¡awarded, on authority of S. v. McMilliam, 243 N.C. 771, 92 S.E. 2d 202.

New Trial.