State v. . Atkinson

188 S.E. 73, 210 N.C. 661, 1936 N.C. LEXIS 192

• Court: Supreme Court of North Carolina
• Decided: November 4, 1936
• Status: Published

Opinion

Stacy, C. J.

The gravamen of the charge against the defendant is, that he kept or had in his possession, for the purpose of sale, spirituous liquors in violation of C. S., 3379. S. v. Langley, 209 N. C., 178, 183 S. E., 526. The additional allegation, “and not bearing the stamp of the A. B. C. Board of Pitt County,” was unnecessary and may be regarded as surplusage or as a refinement within the meaning of O. S., 4623. “A refinement is understood to be the verbiage which is frequently found in indictments in setting forth what is not essential to the constitution of the offense, and, therefore, not required to be proved on the trial”- — Gaston, J., in S. v. Gallimore, 24 N. C., 372. The prosecution was under no obligation, to offer evidence of a nonessential averment. S. v. Guest, 100 N. C., 410, 6 S. E., 253.

In addition to the prima facie case, arising from the possession of more than a gallon of spirituous liquors, S. v. Tate, ante, 168, there was other circumstantial evidence tending to show its possession for the purpose of sale. S. v. Rhodes, ante, 473; S. v. Hardy, 209 N. C., 83, 182 S. E., 831. The case was properly submitted to the jury. S. v. Ellis, ante, 166.

No error.