State v. Rhodes

64 S.E.2d 287 (1951)

233 N.C. 453

STATE v. RHODES.

No. 361.

Supreme Court of North Carolina.

April 11, 1951.

*288 Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Walter F. Brinkley, Member of Staff, Raleigh, for the State.

Jones, Reed & Griffin, Kinston, for defendant, appellant.

JOHNSON, Justice.

The State in making out its case relied mainly upon the testimony of officer G. C. Cox. The defendant objected to all incriminating facts given in evidence by this witness on the ground that his knowledge in respect thereto was obtained in the execution of illegal search warrants. The exceptions preserving these objections have been brought forward and form the basis of the defendant's main challenge to the validity of the trial below.

It appears in evidence that officer Clarence Bland obtained a search warrant to search the premises of the defendant Ernest Rhodes, described as including "his dwelling, garage, filling station, barn and outhouses, and premises, which is located on Deep Run Road and near Jenkinsville, which is located in Neuse Township, Lenoir County, N. C."

A similar warrant was obtained by officer Cox, naming "John Doe" as the person whose property was to be searched and describing the same property as it set out in the companion warrant against the defendant.

In the court below, the defendant contended that the testimony of officer Cox was incompetent on the ground that both search warrants were invalid. The court ruled with the defendant as to the John Doe warrant, announcing that "I will admit any evidence that is competent under the search warrant against Ernest Rhodes, on the premises: the dwelling, garage, filling station, outhouse and premises of Ernest Rhodes, and I will exclude any evidence under the other warrant." The presiding judge further qualified his ruling by stating: "I will admit evidence as to all buildings occupied by this defendant, but not as against the buildings occupied by tenants." The foregoing rulings in effect amounted to a quashal of the John Doe warrant.

The testimony of officer Cox then appears to have been offered by the State and admitted in evidence by the court upon the theory that the search was made by officers Cox and Bland together, acting in concert under the warrant of officer Bland, which was held to be valid. This ruling is sustained by the presumption that the officers acted, not under the invalid warrant, but under the valid writ. Wharton's Criminal Evidence, Vol. 1, p. 177. *289 No error may be predicated upon this ruling in the absence of a showing that the search warrant against the defendant was not issued according to the procedural formalities of G.S. § 15-27, which provides as follows: "Any officer who shall sign and issue or cause to be signed and issued a search warrant without first requiring the complainant or other person to sign an affidavit under oath and examining said person or complainant in regard thereto shall be guilty of a misdemeanor; and no facts discovered by reason of the issuance of such illegal search warrant shall be competent as evidence in the trial of any action."

The defendant in attacking the validity of the search warrant against him specifies no particular defect therein. He simply contends that the State did not offer evidence showing affirmatively that the warrant was issued in accordance with the statutory requirements. The contention is without merit. Officer Cox testified: "Mr. Bland obtained a search warrant on or about October 7th, to search the premises of Ernest Rhodes. I was with Mr. Bland at the time; this is the search warrant." The warrant and supporting affidavit are set out in the record and it appears that they comply with the requirements of the statutes, G.S. § 18-13 and G.S. § 15-27. This being so, it is presumed that the issuing officer properly examined the complainant and otherwise observed the requirements of the statute. Wharton's Criminal Evidence, Vol.1, pp. 176 and 179. See also State v. Shermer, 216 N.C. 719, 6 S.E.2d 529; State v. Elder, 217 N.C. 111, 6 S.E.2d 840. It follows that the testimony of officer Cox was properly admitted by Judge Stevens.

The defendant's remaining exceptions test the sufficiency of the evidence to take the case to the jury. The record indicates that the non-taxpaid whiskey was found on property owned by the defendant, near his dwelling and place of business. A path led from his dwelling to the smokehouse in which the liquor was found; the smokehouse was padlocked, and the defendant, when told that the officers would like to search the building, replied that "You won't find anything in there." He later said, "I have the key here some place," but failed to produce it, and upon being told that the officers would break in, he said, "If you break in you will have to fix it back." Elsewhere on the defendant's property, within about fifty feet of his store, in a building which was locked, were found fifteen hundred to two thousand empty pint taxpaid liquor bottles, and an employee of the defendant had in his possession the key to the building. This evidence, with other incriminating circumstances shown in evidence, it would seem, was sufficient to take the case to the jury. State v. Meyers, 190 N.C. 239, 129 S.E. 600; State v. Pierce, 192 N.C. 766, 136 S.E. 121; State v. Weston, 197 N.C. 25, 147 S.E. 618.

No error.