State v. . Burgess

119 S.E. 820, 186 N.C. 467, 1923 N.C. LEXIS 271

Opinions

CLARKSON, J., concurring. CLARK, C. J., concurs in concurring opinion. Criminal prosecution, tried upon an indictment charging the defendant with manufacturing spirituous liquors in violation of C. S., 4453.

From a conviction of attempting to manufacture liquor he appeals, assigning errors. The defendant, R. J. Burgess, while working for a short time on the new school building in Wadesboro, was a boarder at the house of one Tobe Honeycutt. Honeycutt and Burgess were indicted, in separate bills, charged with the unlawful manufacture of spirituous liquors. Over objection, the two cases were consolidated and tried together. We make no present ruling as to the legality or correctness of this consolidation. S. v. Stephens,170 N.C. 745. It is unnecessary to do so. The case turns on a demurrer to the evidence.

There was evidence tending to show the guilt of Honeycutt, but we think the conviction of Burgess for an attempt to manufacture liquor must be reversed, under authority of S. v. Addor, 183 N.C. 687.

A few days before Christmas, 1922, two deputy sheriffs of Anson County searched the premises of Honeycutt for evidence of violation of the prohibition law. They found a barrel near the house with some beer in it, a galvanized box under the house with some mud on it; also three one-gallon jugs and a wet sack with the odor of whiskey about them, while a copper still was found in the barn, a short distance away.

The only evidence tending to inculpate Burgess was an oil stove and a copper pipe found in his room and a wet place on the floor of the room occupied by him. But it also appeared that this room was used by Honeycutt's two sons when they were at home, and that they caused the wet spot on the floor. Burgess was not there at the time of the search.

This evidence, we think, was insufficient to warrant a verdict against the defendant, R. J. Burgess, for attempting to manufacture liquor. His demurrer to the evidence, or motion for judgment as of nonsuit, under C. S., 4643, should have been allowed.

Reversed.