State v. . Jones

WalkeR, J.y

after stating the case: There was ample evidence to support the verdict, and the motion to nonsuit was properly overruled. The evidence tended to show that defendant had been engaged in the business of manufacturing liquor. He had on his premises and in his residence all the component parts of a perfect apparatus for distilling liquor, and if others assisted in the process of manufacturing, there was also evidence that the defendant not only permitted the illegal business to be done in his house, but actually furnished the still and the place for using it, and this would make him a participant in the crime.

The charge of the court that if the defendant took part in the offense by giving his permission to the use of his premises for the illegal purpose, he would be guilty, is clearly sustained by the case of S. v. Fenton, 154 N. C., 641, where this Court held, as shown by the headnotes, as follows: “1. If the jury should be satisfied from the evidence that H. owned tbe whiskey and brought it in a basket to defendant’s home for the purpose of selling it there, and sold a pint to one D. in defendant’s presence and with his knowledge, the defendant would be guilty of aiding and abetting the sale; and that is in misdemeanors all aiders and abettors are principals, defendant would be guilty as a principal in the unlawful sale. 2. One is guilty of an unlawful sale of spirituous liquor as a principal when he allows the use of his home in order to more secretly effect the sale there; and evidence tending to show that this was done and the price paid while at defendant’s home in a room wherein he was lying on a lounge, though without evidence of his receiving a part of the price paid, is sufficient for his conviction as a principal in aiding and abetting the unlawful act,” citing Commonwealth v. Hayes, 167 Mass., 176, as deciding that one may be convicted for the unlawful sale of or keeping for sale of, intoxicating liquors, if the jury find “that the premises were kept and maintained by him, and that any part thereof was, with defendant’s consent, used for the illegal sale or keeping of spirituous liquors.”

And this Court added in S. v. Denton, supra: “If the defendant knowingly permitted Hodge to use his home for the illicit sale of whiskey on one occasion, he is an aider and abettor on that occasion; and it is as much a violation of law as if he habitually permitted it.”

That case was decided by a divided Court (two of the justices dissenting), but, even under the view held by the dissenting justices, the charge here could be sustained. This case is much stronger to show defendant’s actual participation, as an aider and abettor, than the Denton case, for under the instruction of the Court the jury must have found that defendant did more than assent tacitly to the manufacture of liquor, and that he “aided and assisted” by contributing the use of his premises to the unlawful purpose. He is just as guilty, under the statute (Public Laws of 1917, eh. 157), as if he had furnished the still or the corn and apples, or the coal and wood to make the fire, or any other material used in the manufacture of the liquor.

The mere knowledge of the use of premises by a distiller and consent thereto of one who holds a mortgage on the same is made a ground of forfeiture by him of his interest under the act of Congress. U. S. v. Stowell, 133 U. S., 1; Glenn v. Winstead, 116 N. C., 454.

The exceptions as to the use of the photograph for the purpose of allowing one of the witnesses to illustrate or explain his testimony is not well taken. The witness was endeavoring to show how the parts of the distillery which were found in the house might be assembled so as to make a complete apparatus for manufacturing liquor. He could use a diagram for the purpose, and why not a photograph? The trial judge excluded it for any other purpose, and distinctly charged the jury to disregard it, except for the indicated purpose and not to use it' as substantive testimony. The witness M. F. Patterson testified that “it was a correct picture of the implements found in the defendant’s house.”

Photographs have been admitted in evidence with the sanction of the courts in similar eases. Butler v. State, 142 Ga., 286; Wade v. R. R., 89 S. C., 280; Griffith v. Coal Co., 84 S. E., 621; Spencer v. Looney, 116 Va., 767; Prok v. R. R., 75 W. Va., 697; Napier v. Little, 38 L. R. A. (N. S.), 91 (Anno. Cases, 1913 A, 1013); Shaw v. State, 83 Ga., 92; and in S. v. O’Reilly, 126 Mo., 597, where it is said: “It has always been permissible to use diagrams in the trial of causes, both civil and criminal, and especially in the latter class to use diagrams, if shown to be correct, to illustrate the position of persons and places and to better enable the witnesses to properly locate them. If, then, a diagram may be used for such a purpose, we can see no good reason why a photograph may not be, by which is presented to view everything within the range of the camera at the time the photograph was taken.”

We have permitted photographs to be used, instead of diagrams, under circumstances making the latter competent, when they were shown to have been correctly taken. Hampton v. R. R., 120 N. C., 534; Davis v. R. R., 136 N. C., 116; Pickett v. R. R., 153 N. C., 148; Hoyle v. Hickory, 167 N. C., 619. As we said in the Hickory case, it might be impossible to illustrate the situation, or to give the jury a correct idea of it in any other way. If the correctness of the picture is shown, we do not see why it should be less competent than a diagram, or a drawing made by the witness for purposes of illustration at the time- he testified.

No error.