State v. Hall

81 S.E.2d 189 (1954)

240 N.C. 109

STATE v. HALL.

No. 292.

Supreme Court of North Carolina.

April 7, 1954.

*190 Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Gerald F. White, Raleigh, Member of Staff, for the State.

Charles L. Abernethy, Jr., New Bern, for defendant.

ERVIN, Justice.

When the verdict of the jury is spelled out, it finds the defendant guilty of the misdemeanor of possessing alcoholic beverage on which Federal and State taxes have not been paid in violation of the statute codified as G.S. § 18-48.

We take it for granted without so adjudging for the purpose of this particular appeal that the criminal complaint underlying the warrant contains a count charging possession of alcoholic beverages on which taxes have not been paid as well as a count charging possession of intoxicating liquor for the purpose of sale.

Despite this assumption, we are constrained to hold that the trial, conviction, and sentence of the defendant for possessing alcoholic beverages on which taxes have not been paid offends Sections 12 and 13 of Article I of the Constitution of North Carolina, which provide, in essence, *191 that the superior court has no jurisdiction to try an accused for a specific misdemeanor on the warrant of an inferior court unless he is first tried and convicted for such misdemeanor in the inferior court and appeals to the superior court from the sentence pronounced against him by the inferior court on his conviction for such misdemeanor. State v. Thomas, 236 N.C. 454, 73 S.E.2d 283. The defendant was not tried, convicted, and sentenced in the Recorder's Court of the City of New Bern for possessing alcoholic beverages on which taxes have not been paid.

The trial, conviction, and sentence cannot be upheld on the theory that possessing alcoholic beverages on which taxes have not been paid is a lesser offense included in the charge of possessing intoxicating liquor for the purpose of sale. Any such notion is incompatible with State v. Peterson, 226 N.C. 255, 37 S.E.2d 591, and State v. McNeill, 225 N.C. 560, 35 S.E.2d 629, which hold that these two crimes are specific misdemeanors of equal dignity created by separate statutory provisions, that neither crime includes the other as a lesser offense, and that an accused cannot be convicted of possessing alcoholic beverages on which taxes have not been paid under a warrant charging him with possessing intoxicating liquor for the purpose of sale, even though the warrant specifies that the subject of the offense is "non-tax paid" liquor.

The authority of the Peterson and McNeill cases on this precise point is not impaired in any degree by State v. Hill, 236 N.C. 704, 73 S.E.2d 894, which overrules them to the extent, and only to the extent, that they hold that the prima facie evidence rule created by G.S. § 18-11 is not applicable to prosecutions based on criminal accusations which employ the phraseology of G.S. § 18-50 and charge in express terms that the intoxicating liquor allegedly possessed for the purpose of sale was of the "illicit" or "non-tax paid" variety.

For the reasons given, the judgment is arrested.