State v. . Allen

130 S.E. 163, 190 N.C. 498, 1925 N.C. LEXIS 111

Opinion

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.