State v. Camel

53 S.E.2d 313, 230 N.C. 426, 1949 N.C. LEXIS 352

• Court: Supreme Court of North Carolina
• Decided: May 11, 1949
• Status: Published

Opinion

DeviN, J.

Tbe criminal prosecution of tbe defendant was inaugurated by tbe issuance of a warrant out of tbe Police Court of Asheville charging that “Corrie Camel did unlawfully, wilfully and feloniously have and/or keep in her possession a certain quantity of illegal nontax-paid whisky, to-wit, in violation of tbe ABC Store Act. Second count: Have or keep in her possession for tbe purpose of selling or giving away a certain quantity of illegal nontax-paid whisky.” Upon tbe defendant’s appeal from conviction in tbe Police Court, tbe case was tried on tbe same warrant in tbe Superior Court, where tbe jury returned verdict of “guilty of unlawful possession of whisky, and keeping liquor for sale.” Judgment on tbe verdict was rendered, imposing prison sentence of twelve months. Tbe defendant appealed to this Court. Error is assigned in tbe trial below in three particulars.

(1) Tbe defendant in apt time moved to quash tbe warrant on tbe ground that it did not express a charge against tbe defendant in a plain, intelligible and explicit manner. While tbe warrant was inexpertly drawn, we think tbe first count therein stripped of nonessential words does set out a charge of unlawful possession of whisky, sufficiently ex pressed to survive a motion to quasb. G.S. 15-153; S. v. Howley, 220 N.C. 113, 16 S.E. 2d 705.

As to the second count in the warrant, it is obvious that the failure to name the person charged renders it insufficient to support verdict and judgment on that count. S. v. McCollum, 181 N.C. 584, 107 S.E. 309; S. v. May, 132 N.C. 1020, 43 S.E. 819; S. v. Phelps, 65 N.C. 450. Apparently the jury by the verdict of guilty of unlawful possession, and also of keeping liquor for sale, found the defendant guilty on both the first and second counts. However, so much of the verdict as found the defendant guilty of unlawful possession of whisky as charged in the first count was sufficient to empower the court to render judgment thereon. The motion to quash was properly denied.

(2) The defendant’s exception to the denial of her motion for judgment as of nonsuit cannot be sustained. There was sufficient evidence of unlawful possession of a considerable quantity of nontax-paid whisky to carry the case to the jury on the first count in the warrant. S. v. Barnhardt, ante, 223, 52 S.E. 2d 904.

(3) It appears, however, that a verdict was rendered which must be interpreted as specifically finding defendant guilty upon both of two counts in the warrant, one of which counts was legally insufficient to support a verdict or warrant the imposition of judgment. On this verdict a single judgment was rendered. Presumably this was based upon consideration of guilt on both charges. We think the defendant entitled to have the case remanded' for proper judgment only on the count to which there was no valid objection. This view is supported by what was said in S. v. Braxton, ante, 312 (315), 52 S.E. 2d 895.

Remanded for judgment.