STATE
v.
Thurman Lee PITT.
No. 218.
Supreme Court of North Carolina.
March 19, 1958.*411 George B. Patton, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.
Weeks & Muse, by T. Chandler, Muse, Tarboro, for defendant, appellant.
HIGGINS, Justice.
For the benefit of law enforcement officers and the profession, the bill of indictment is set out in full because of the accuracy with which it charges an offense under G.S. § 18-48. The plea of not guilty placed upon the State the burden of proving beyond a reasonable doubt all essential elements of the offense: (1) Possession; (2) the Federal or State tax had not been paid, G.S. § 18-48; (3) alcoholic content exceeding 14 per cent by volume, G.S. § 18-60. The defendant contends the State's evidence is insufficient to prove any of these essentials and that a verdict of not guilty should have been directed.
1. The whisky was found concealed in a trap in the defendant's living quarters. He admitted to the officers and to the State's witness Miles that it belonged to him. Evidence of possession, therefore, was sufficient.
*412 2. One of the officers testified he had been an ABC officer for more than 11 years, during which time he had had experience in examining whisky and that he could tell the difference in ABC whisky and whisky not sold in ABC stores. "I can smell of it and tell the difference. * * * It (the whisky introduced in evidence) is not ABC whisky." This evidence was competent. Its weight was for the jury. It is stipulated that the containers bore no stamps. This evidence was sufficient to go to the jury and to support the finding the taxes had not been paid.
3. The State offered evidence that the beverage found in the defendant's possession was whisky. It was introduced in evidence and inspected by the jury. For the reasons stated in the case of State v. May, decided today, this evidence is sufficient to show the alcoholic content was more than 14 per cent.
Over objection, the State's witness James E. Miles, testified: "I am a probation officer. * * * I have had occasion to talk with the defendant, on the 10th of this month. * * * He stated to me that a gallon and three pints of whisky was found at his house * * * and that it was his."
The defendant moved to strike this evidence and when the motion was denied, he moved for a mistrial and excepted to the court's refusal to grant the motion. The defendant insists the probation officer's testimony with respect to his conversation with the defendant was equivalent to telling the jury the defendant had been convicted of a criminal offense in some other case and was in fact equivalent to offering evirence of defendant's bad character. The answer is that the probation officer testified only that the defendant admitted his ownership of the whisky found in his house and introduced in evidence. The defendant had made the same admission to the officers and the admission was already in evidence without objection. The record does not disclose the reason for the probation officer's conference with the defendant, and the evidence the witness was a probation officer served to identify him. His evidence related solely to the whisky involved in the case. That it conveyed to the jury any other meaning is entirely speculation.
The defendant assigns as error the admission of the officers' evidence that the whisky involved was "nontaxpaid"; that the testimony was the statement of a conclusion. At first the court sustained the defendant's objection and refused to admit such evidence, with the comment, "Better qualify him a little more." After the witness testified he knew the difference between whisky sold in ABC stores and whisky made illegally and not under government supervision, the officer was permitted to say, "It is not ABC whisky." See State v. Merritt, 231 N.C. 59, 55 S.E.2d 804.
The defendant assigns as error the charge of the court to the effect that the State must prove the alcoholic content of the beverage to be 14 per cent or more. However, the court had read G.S. § 18-60 and stated the alcoholic content must be more than 14 per cent. The other statements in the charge to the effect that the alcoholic content must be 14 per cent or more could neither have confused nor misled the jury. There was no evidence that the alcoholic content was 14 per cent and no more. The court further charged: "The law says that a container which does not bear either a revenue stamp of the Federal Government or any of the Boards of the State of North Carolina shall constitute prima facie evidence that the taxes have not been paid." The court did not define the term, "prima facie evidence." Technically, the court should have done so. However, the oversight, in the absence of a request, is not deemed sufficient to constitute reversible error. Failure to charge on a subordinatenot a substantivefeature of a trial is not reversible error in the absence of request for such instruction. State v. Stevens, 244 N.C. 40, 92 S.E.2d 409; State v. Wallace, 203 N.C. 284, 165 S.E. 716.
*413 The defendant's attorneys have been diligent in their efforts to protect his rights. The record, however, fails to show error of substance.
No error.
JOHNSON, J., dissents