
    STATE v. C. L. SNIPES.
    (Filed 16 May, 1923.)
    1. Intoxicating Liquors — Spirituous Liquors — “Receive”—Statutes—Evidence.
    Considering tlie language of C. S., 3385, with the history of legislation relating to prohibition, it is held that its controlling intent and purpose is to make it unlawful .for any person to acquire and take into his possession within the State at any one time or in any one package, spirituous or vinous liquors, etc., in a quantity greater than one quart, without restricting the meaning of the word “receive” to “accepting from another”; and evidence tending to show that the defendant had walked straight to the place where the prohibited quantity was concealed and taken it from its hiding place, is sufficient to show that he knew it had been hidden there for his benefit, and sustain a conviction.
    2. Verdicts — Responsiveness—Issues.
    A verdict must be certain and responsive to the issues submitted by the court.
    3. Same — Courts—Changes—Surplusage.
    While the court may make a merely formal change in the verdict, it cannot amend or change a verdict in any matter of substance without the consent of the jury, or with their consent after the verdict has been finally recorded; but if a verdict is responsive to the issue or issues submitted, and is otherwise sufficient, words which are not a part of the legal verdict may be treated as surplusage.
    
      4. Verdicts — Evidence—Presumptions.
    Wliere an indictment contains several counts and the evidence applies to one or more, but not to all, a general verdict will be presumed to have been returned on the count or counts to which the evidence relates.
    5. Verdicts — Indictment^ — Several Counts — Issues—Answers—Presumptions.
    Where the indictment contains several counts, and there is a verdict of guilty as to some but no verdict as to the others, the failure to return a verdict as to the latter is equivalent to a verdict of not guilty.
    6. Verdicts — Ambiguity—Interpretation—Evidence—Instructions.
    If a verdict as returned is not complete, but is ambiguous in its terms, the ambiguity may sometimes be explained and the verdict construed by reference to and in connection with the evidence and the charge of the court.
    7. Intoxicating Liquors — Spirituous. Liquors — Indictments — Counts— Statutes — Conviction—Constitutional Law.
    Counts in an indictment charging the defendant with violating our prohibition law, first, having liquor in his possession for the purpose of sale; second, with receiving within the State a quantity greater than one quart; third, receiving within the State a package of spirituous liquor in a quantity greater than one quart, do not charge the offense prohibited by C. S., 3886, making it unlawful for any person during the space of fifteen consecutive days to receive such liquors in a quantity or quantities totaling more than one quart; and a verdict under the counts in this indictment of guilty of receiving more than one quart of whiskey in fifteen days is not responsive to the issues, and is a conviction of an offense of which the defendant was not tried, and concerning which a former conviction may not be successfully maintained, and is in contravention of Art. II, secs. 11 and 12, of our State Constitution.
    8. Same — Ajjpeal and Error — Objections and Exceptions — Briefs—Rules of Court.
    Where the defendant, tried for violating our State prohibition law, has not been indicted under the provisions of C. S., 3386, for receiving within fifteen consecutive days in this State liquors in quantity or quantities totaling more than one quart, but the trial has been proceeded with under other counts, his exception to the court’s refusal to set aside a verdict of conviction under C. S., 3386, and to the judgment accordingly entered, is sufficient to bring up the case to the Supreme Court for review; and his brief addressed to the insufficiency of the verdict, citing authorities, is a compliance with Supreme Court rules in that respect.
    CLARK, C. J., dissenting.
    Appeal by defendant from Finley, J., at February Term, 1923, of Caldwell.
    Criminal action for a violation of the prohibition law. The indictment contains three counts. In the first the defendant is charged with having liquor in his possession for the purpose of sale; in the second, with receiving at a point within the State at one time spirituous liquor in a quantity greater tban one quart; and in the third, with receiving at a point within the State in one'package spirituous liquor in a quantity greater than one quart.
    Will Beach, a witness for the State, testified that he, the defendant, and two other men were traveling in an automobile which broke down, and that he and the defendant went into the woods to get some blocks to put under the car in order to prize it up for repairs; that while they were in the woods the defendant raked off some leaves and took out of the ground a half-gallon fruit jar containing about three pints of whiskey; that when the sheriff came up, the witness had the whiskey in his possession; and that he had pleaded guilty to a breach of the statute at the November term. On cross-examination he testified that he was not certain who took the whiskey out of the ground, but on the redirect examination he said that the defendant walked straight to the whiskey and found it, and that his best impression was the defendant took it from the ground and delivered it to the witness.
    The judge charged the jury if they were satisfied from the evidence beyond a reasonable doubt that the defendant unlawfully and willfully got more than a quart of whiskey at one time in one package and took it into his possession he would be guilty.
    For their verdict the jury said: We find the defendant guilty of receiving more than one quart of whiskey in fifteen days. Judgment was pronounced, and the defendant appealed.
    
      Attorney-General Manning and Assistant Attorney-General Nash, for the State.
    
    
      Lawrence Wakefield for defendant.
    
   Adams, J.

It is necessary to consider the case with reference to the second and third counts only, for as to the first there was no instruction by the court, and presumably no consideration, and certainly no verdict by the jury.

The defendant first moved to dismiss the action on the ground that the evidence, if accepted, did not show that he had received any whiskey within the meaning of the statute — that finding a thing and taking it-into one’s possession is not synonymous with receiving it. We are therefore required to construe the statute (C. S., 3385), and in construing it to ascertain the object intended to be accomplished and to enforce the intention of the Legislature by applying the spirit or reason rather than the letter of the law. 36 Cyc., 1106. An examination of the phraseology of the statute and of the history of legislation relating to prohibition convinces us that the purpose of the law is to prevent any person from acquiring or taking into his possession within the State at any one time or in any one package spirituous or vinous liquors ox-intoxicating bitters in a quantity greater than one quart, or malt liquors. in a quantity greater than five gallons, and that in the accomplishment of this purpose the General Assembly did not intend to indulge in nice-distinctions or to restrict the meaning of the word “receive” to the narrow compass of “accepting from another.”

The evidence is easily susceptible of the interpretation that some other-person had concealed the liquor for the benefit of the defendant, who-no doubt with knowledge of the exact spot “walked straight to it” and took the vessel from the ground. When' the defendant thus acquired or took the liquor into his possession he received it in the sense in which the word “receive” is used in the statute. Knipe v. Austin, 43 Pac., 25; Baker v. Keiser, 23 At. 735; Harly v. Friend, 78 Am. Dec., 649; West v. Weyer, 15 A. S. R., 552.

The next question is more, serious. When the verdict was returned the defendant moved to set it aside and excepted to the adverse ruling of the court; and when judgment was pronounced the defendant again excepted.

With respect to the verdict of a jury in a civil or criminal action, the following principles are generally recognized and applied:

1. A verdict must be certain and responsive to the issue or issues submitted by the court. Clark’s Cr. Pro., 480 et seq,; Bishop’s Cr. Pro., 867; 16 C. J., 1103; S. v. Whitaker, 89 N. C., 472; S. v. Whisenant, 149 N. C., 515; S. v. Parker, 152 N. C., 791; S. v. Lemons, 182 N. C., 828.

2. While a change merely as to form is not fatal, the court cannot amend or change a verdict in any matter of substance without the consent of the jury, and cannot do so with their consent after the verdict has been finally accepted and recorded; but if a verdict is responsive to the issue or issues submitted, and is otherwise sufficient, additional words which are not a part of the legal verdict may be treated as surplusage; as, for example, a verdict of guilty with a recommendation of mercy. Clark’s Cr. Pro., supra; S. v. Hudson, 74 N. C., 246; S. v. Whitaker, supra; S. v. Kinsauls, 126 N. C., 1095; S. v. Godwin, 138 N. C., 583; S. v. Whisenant, supra; S. v. McKay, 150 N. C., 816; S. v. Hancock, 151 N. C., 699; S. v. Parker, 152 N. C., 790; S. v. Murphy, 157 N. C., 615.

3. Where the indictment contains several counts and the evidence applies to one or more, but not to all, a general verdict will be presumed to have been returned on the count or counts to which the evidence relates. Morehead v. Brown, 51 N. C., 369; S. v. Long, 52 N. C., 26; S. v. Leak, 80 N. C., 404; S. v. Thompson, 95 N. C., 597; S. v. Stroud, ibid., 627; S. v. Cross, 106 N. C., 650; S. v. Toole, ibid., 736; S. v. Gilchrist, 113 N. C., 673; S. v. May, 132 N. C., 1021; S. v. Gregory, 153 N. C., 646; S. v. Poythress, 174 N. C., 813; S. v. Strange, 183 N. C., 775.

4. Where the indictment contains several counts, and there is a verdict of guilty as to some but no verdict as to the others, the failure to return a verdict as to the latter is equivalent to a verdict of not guilty. S. v. Thompson, supra; S. v. Cross, supra.

5. If a verdict as returned is not complete, but is ambiguous in its terms, the ambiguity may sometimes be explained and the verdict construed by reference to and in connection with the evidence and the charge of the court. Greenleaf v. R. R., 91 N. C., 33; S. v. Gilchrist, 113 N. C., 676; S. v. Gregory, 153 N. C., 648; Richardson v. Edwards, 156 N. C., 590; Donnell v. Greensboro, 164 N. C., 331; Bank v. Wilson, 168 N. C., 557; Reynolds v. Express Co., 172 N. C., 487; Price v. R. R., 173 N. C., 397; Grove v. Baker, 174 N. C., 747; Wilson v. Jones, 176 N. C., 207; Jones v. R. R., ibid., 260; Balcum v. Johnson, 111 N. C., 218; Howell v. Pate, 181 N. C., 117.

The statutes upon which the second and third counts are based makes it unlawful for any person to receive at any one time or in any one package within the State any of the liquors described in a quantity greater than one quart. There is another statute (C. S., 3386) which makes it unlawful for any person during the space of fifteen consecutive days to receive such liquors in a quantity or quantities totaling more than one quart. The difference between the two statutes is readily observable. In a prosecution upon the first it must be shown that the liquor was received at one time or in one package;' in a prosecution upon the second it must appear that during the space of fifteen consecutive days liquor was received in a quantity or quantities totaling more than one quart. And the verdict must respond to the charge. It will also be observed that the statute last referred to is not included in either count, and is not referred to in the indictment; but the jury, instead of considering the issues raised by the second and third counts and submitted in his Honor’s charge disregarded the charge and the issues and convicted the defendant of receiving more than one quart of whiskey in fifteen days — a crime with which he was not charged, and concerning which his Honor gave the jury no instruction. The verdict is not responsive to the issue joined on either of the counts because there is no finding that the liquor was received at any one time or in any one package; and it cannot be amended or changed or construed by reference to the evidence and the charge because it is not ambiguous, but is clear and complete. It was accepted and recorded as it was returned, and it shows unequivocally, that the jury did not convict the defendant of any offense with which he was charged or for which he was prosecuted. If the defendant should again be prosecuted on the second and third counts, his plea of former conviction could not be upheld on the verdict as it now appears. It must be understood that the question is not whether the evidence is sufficient to sustain the counts in the bill or to show1 the receipt of more than one quart of liquor in fifteen consecutive days; the paramount question is whether a man who is prosecuted for one crime can lawfully be convicted of another. There can be only one answer. To punish him for a crime of which he is not convicted would be to run broadside against the Constitution, and, in effect, to abrogate the law laid down in a large number of decisions. The Constitution provides that in all criminal prosecutions every man has the right to be informed of the accusation against him, and that no person shall be put to answer any criminal charge, . . . but by indictment, presentment, or impeachment. Art. I, secs. 11, 12. “These principles,” said Chief Justice Nash, “are dear to every free man; they are his shield and buckler against wrong and oppression, and lie at the foundation of civil liberty; they are declared to be the rights of the citizens of North Carolina and ought to be vigilantly guarded.” S. v. Moss, 47 N. C., 67. And it is hardly conceivable that Chief Justice Ruffin, by commending a statute which merely simplified the form of indictments, intended to disregard this fundamental doctrine and to “drive a coach and six” through the organic law. S. v. Simons, 68 N. C., 378; S. v. Ray, 92 N. C., 810; S. v. Lewis, 93 N. C., 581; S. v. Cline, 150 N. C., 854; S. v. Whedbee, 152 N. C., 770; S. v. Wilkerson, 164 N. C., 432.

It is suggested, however, that a defect in the verdict was not presented on the oral argument, and does not appear in the brief, and that exceptions in the record not set out in the appellant’s brief will be treated as abandoned. But, as we have stated, the record discloses the defendant’s exception to the verdict, his exception to the court’s refusal to set aside the verdict, and his exception to the judgment. As to the verdict and judgment, what other exception could have fortified his position? And in his brief the third exception, with an array of authorities, is addressed entirely to the insufficiency of the verdict:

A casual comparison with the instant case of S. v. Brame, ante, 631, will reveal the distinction between the verdicts rendered in the two cases; and certainly the appellant’s misinformation or misconception of the verdict in Brame’s case, supra, could by no means modify its legal significance. There the jury found the defendant guilty of a breach of the statute upon which he was prosecuted, and the ambiguity in the verdict was explained by reference to the record or the charge, and the evidence in conformity with the principle hereinbefore stated; and in the case at bar the verdict is complete, but is not responsive to the bill of indictment.

The verdict returned in this case, and the form of other verdicts recently reviewed on appeal, impel us to direct attention to what the' Court bas said in S. v. Godwin, 138 N. C., 585: “Before a verdict returned into open court by a jury is complete, it must be accepted by the court for record. It is the duty of the judge to look after the form and substance of a verdict so as to prevent a doubtful or insufficient finding from passing into the records of the court. For that purpose the court can, at any time while the jury are before it or under its control, see that the jury amend their verdict in form so as to meet the requirements of the law. When a jury returns an informal, insensible, or a repugnant verdict, or one that is not responsive to the issues submitted, they may be directed by the court to retire and reconsider the matter and bring in a proper verdict, i. e., one in proper form. But it is especially incumbent upon the judge not even to suggest the alteration of a verdict in substance, and in sucb matters be should act with great caution.”

¥e are sure tbat tbe form of tbe verdict returned in tbe present case, in an inadvertent moment, no doubt, escaped tbe attention of tbe vigilant and painstaking judge who presided at tbe trial.

Tbe judgment and verdict are set aside to tbe end tbat tbe issues joined between tbe State and tbe defendant may be determined by another jury.

New trial.

ClabK, C. J.,

dissenting: the majority opinion concedes that the facts recited in the evidence justified the “interpretation that the liquor bad been concealed for the benefit of the defendant, who no doubt with knowledge of the exact spot walked straight to it and took the vessel from the ground,” and bolds that “when the defendant thus acquired or took the liquor into bis possession, be 'received it’ in the sense in which that word is used in the statute,” citing authorities.

Mr. Lawrence Wakefield, the learned counsel for the defendant, in opening bis argument, stated that be bad intended to make an objection that the verdict was defective, but said that after examining the decision at this term in S. v. Brame, ante, 631, be found that be was cut off from that defense, and be did not argue it or present it, but based bis case entirely upon the ground that the word “receive” did not embrace this ease where the whiskey was not received from a third person directly, but was taken out of the ground. This was the only argument be made, and on that point, which the court bas held against him, be contended there “was no evidence to support the verdict.”

The proposition as to a defect in the verdict on which the court bases its opinion was not presented in the argument of counsel, nor does it appear in bis brief. Nor was sucb exception taken at the trial. Rule 31 of this Court, 174 N. C., at p. 834, provides that “no exception not set out or filed and made a part of the case and record shall be considered by this Court, other than exceptions to the jurisdiction, or because the complaint does not state a cause of action or motions in arrest for insufficiency of indictment.” There is no such exception nor such motion.

Further, if there had been such exception in the record, Rule 34, 174 N. C., at p. 837, provides: “Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited will be taken as abandoned by him.” On both these grounds the new trial should be refused. The rule and the practice are explicit. Furthermore, even if there had been such exception in the record, and this had been set out in plaintiff’s brief with authorities cited, and had been so argued, it should have been disregarded. In S. v. Hedgecock, ante, 714, in a unanimous opinion, it is said: “Chief Justice Ruffin, in S. v. Moses, 13 N. C., at p. 463, as far back as 1830, in reference to the act of 1811, ch. 809 (now C. S., 4623), said that it was ‘enacted that in all criminal prosecutions in the Superior Courts it shall be sufficient that the indictment contain the charge in a plain, intelligible, and explicit manner; and no judgment shall be arrested for or by reason of any informality or refinement, when there appears to be sufficient in the face of the indictment to induce the court to proceed to judgment.’ And he added these memorable words, which express the best judicial thought of his day, and which since has obtained everywhere: ‘This law was certainly designed to uphold the execution of public justice, by freeing the courts from those fetters of form, techni■cality, and refinement which do not concern the substance of the charge, and the proof to support it. Many of the sages of the law had before called nice objections of this sort a disease of the law and a reproach to the bench, and lamented that they were bound down to strict and precise precedents, neither more brief, plain, nor perspicuous than that which they were constrained to reject. In all indictments, especially in those for felonies, exceptions extremely refined, and often going to form only, have been, though reluctantly, entertained. We think the Legislature meant to disallow the whole of them, and only require the substance, that is, a direct averment of those facts and circumstances which constitute the crime, to be set forth.’ ”

But if, notwithstanding the requirements in Rules 31 and 34, and the provisions of C. S., 4623, and the decision of S. v. Brame, supra, and that there is nothing to contradict the evidence which the opinion in chief holds constituted a “receiving” of one quart of whiskey by the defendant, we must consider the alleged defect in the verdict, it cannot be sustained.

The second count in the indictment charged the defendant with “receiving at a point within the State at one time spirituous liquor in a quantity greater than one quart”; and in the third with “receiving at a point within the State, in one package, spirituous liquor in a quantity greater than one quart.” the evidence fully sustained the charge that the defendant did receive spirituous liquor in a quantity greater than one quart, and also with receiving it in .one package in a quantity greater than one quart. the verdict “We find the defendant guilty of receiving more than one quart of whiskey in 15 days” is certainly justified by the evidence, and in strict compliance with both of these counts in the indictment, for the defendant did receive it in a quantity greater than one quart, and be did receive it in one package. O. S., 3385, provides, in the very terms of this indictment, that it was “unlawful for the defendant to receive at one time, or in one package, within the State, spirituous liquor in a quantity greater than one quart.” that was what section 3385 forbade, and which the defendant did not contradict by evidence in any respect. It is true the words “in 15 days” were superadded, but as the evidence showed, it was “received at one time and in a quantity greater than a quart.” the addition of the words “within 15 days” are simply surplusage and nothing more. Utili non per inutile vitiatur.

If the defendant bad received it in smaller quantities, blit so that the aggregate amount would be more than one quart within 15 days, be would have been guilty, but that was not charged, and the evidence proved that be did receive the whiskey in a quantity greater than one quart, and in one package. Therefore, the finding that the defendant received more than a quart in 15 days was not a matter of which the defendant could complain. According to the evidence, be got the quart as be was charged with doing, and at one time, and the finding that be got the quart within the State within 15 days could in no wise affect the verdict to bis detriment.

In S. v. Brame, ante, 631, the jury returned the verdict that the defendant was “guilty of receiving more liquor than allowed by law,” and Stacy, J., speaking for a unanimous Court, held that “viewing the trial in its entirety, as disclosed by the record, we think it is clear that the verdict rendered amounts to a conviction of the defendant of having violated C. S., 3385: ‘It is unlawful for any person, firm, or corporation, at any one time or in any one package, to receive at a point within the State of North Carolina for bis own use, or for the use of any firm, person, or corporation, or for any other purpose whatever, any spirituous or vinous liquors or intoxicating bitters in a quantity greater than a quart, or any malt liquors in a quantity greater than 5 gallons.’ ” that case covers this as a glove covers a band. How could it prejudice the defendant to find that be did the unlawful act in 15 days, when the uncontradicted evidence is that be did it in one day, at one time, and the court has held that the manner in which be acquired that quart was a “receiving” in law. If done in one day, it was done “within 15 days.”

It is said in S. v. Brame, supra, that the “chief purpose and primary object (of this section 3385) was to prohibit the receipt by any person, firm, or corporation, at any one time or in any one package, of any spirituous or vinous liquors in a quantity greater than one quart or any malt liquors in a quantity greater than 5 gallons.” That is what the evidence in this case, which the defendant did not contradict, clearly proved, and it is within the scope and purpose of C. S., 3385, and within the terms of the indictment.  