STATE
v.
WILSON.
No. 655.
Supreme Court of North Carolina.
May 20, 1953.*925 Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.
T. S. Wall, Jr., Lexington, for defendant-appellant.
WINBORNE, Justice.
The first two assignments of error on this appeal may be considered together. Appellant contends that the original warrant is fatally defective in that it fails to charge any criminal offense, and hence may not be amended.
In this connection it is a well-established rule of practice in criminal prosecutions in this State that the Superior Court, on appeal thereto from an inferior court, has the discretionary authority to permit an amendment of the warrant on which the prosecution rests. State v. Wilson, 221 N. C. 365, 20 S.E.2d 273. But a warrant cannot be amended so as to charge a different offense. State v. Goff, 205 N.C. 545, 172 S.E. 407; State v. Clegg, 214 N.C. 675, 200 S.E. 371; State v. Brown, 225 N.C. 22, 33 S.E.2d 121; Carson v. Doggett, 231 N. C. 629, 58 S.E.2d 609, and numerous other cases.
On the other hand, the Attorney General for the State, while admitting that the warrant is "inartfully drawn", contends that the original warrant charges at least three separate offenses: (1) The unlawful possession of nontax-paid liquor, (2) the unlawful possession for purpose of sale of *926 nontax-paid liquor, and (3) the unlawful sale of alcoholic liquors; and that the amendments simply state the three charges "in more workman-like language".
Be that as it may, since the jury only found defendant guilty of the offense of unlawful possession of intoxicating liquors, as charged in the first count, that is, of nontax-paid liquor, consideration of these assignments may be confined to that count.
Now, turning to the original affidavit on which the warrant was issued, it seems clear that the phraseology of it, deleted of surplus words, State v. Levy, 220 N.C. 812, 18 S.E.2d 355, may be divided into two parts. The first part charges that defendant "did unlawfully and willfully * * * possess * * * alcoholic liquors on the licensed premises of his own * *". And the second part, reading "the * * * possession of which alcoholic liquors was not authorized under the license which the licensee held authorizing the sale at retail of beverages as defined in section 18-64(a) and (b) for consumption on the premises where sold", distinguishes the liquors unlawfully possessed from those alcoholic beverages lawfully possessed under license, thereby making certain the character of liquor of which defendant is charged with unlawful possession. And from this distinguishing character, it may be inferred that the alcoholic liquors unlawfully possessed were nontax-paid,as the evidence offered upon trial tends to show.
Accordingly this Court holds that the charge is sufficiently definite to withstand the attack made upon it by defendant, and to admit of amendment as allowed,designated the first count.
Therefore motions of defendant to quash the warrant founded on the original affidavit, and the affidavit as amended, were properly overruled. And in the assignments based upon exceptions thereto error is not made to appear.
The next assignment of error is that "the motion to quash the warrant for the reason that the warrant was issued by A. L. Parker, a Sergeant of the Police Department, which is unconstitutional in North Carolina". However, reference to the record fails to disclose that the motion to quash was based on this ground. And there is nothing in the record to indicate that the court made any ruling in this respect. Defendant in his brief points to the general statute, G. S. § 15-18, as authority in support of his position that the Sergeant of the Police Department is not authorized to issue a warrant. However the Attorney General calls attention to the fact that the General Assembly has authorized and empowered "The Chief of Police, the Captains and the Sergeants of the Police Department of the Town of Lexington in Davidson County", "to issue warrants and all other criminal process, take affidavits and receive bail in any criminal action coming before the inferior court known as the Davidson County Court." Section 1 of Chapter 1258 of 1949 Session Laws of North Carolina. Defendant does not refer to this act nor discuss its provisions. Hence the question of the legality, or the constitutionality of the act of the Sergeant of the Police Department in issuing the warrant is not presented, and is not considered.
The motions of defendant aptly made for judgment as of nonsuit were properly overruled. The evidence appears to be sufficient to take the case to the jury, and to support the verdict rendered. And there is nothing in the record to show that defendant was taken unawares.
Other assignments of error are considered, and fail to reveal prejudicial error.
Therefore, in the judgment below, we find
No error.