State v. . Carpenter

3 S.E.2d 34, 215 N.C. 635, 1939 N.C. LEXIS 327

• Court: Supreme Court of North Carolina
• Decided: May 24, 1939
• Status: Published

Opinion

ClabksoN, J.

We think tbe evidence plenary and sufficient to be submitted to tbe jury tbat tbe defendants bad in their possession “blind-tiger,” or “boot-leg” liquor, contrary to law.

Public Laws of N. C., Extra Session, 1923, chap. 1 (known as tbe “Turlington Act”) is, in part:

“Sec. 1. When used in this act — (1) Tbe word liquor’ or tbe phrase Intoxicating liquor’ shall be construed to include alcohol, brandy, whiskey, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquors, liquids, and compounds, wbetbe.r medicated, proprietary, patented, or not, and by whatever name called, containing one-half of one per centum or more of alcohol by volume, which are fit for use for beverage purposes. . . . (N. 0. Code, 1935 [Michie], sec. 3411 [a] — this section is not now applicable to wine and beer.)

“Sec. 2. No person shall manufacture, sell, barter, transport, import, export, deliver, furnish, purchase, or possess any intoxicating liquor except as authorized in this act; and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented, . . . {Supra, sec. 3411 [bj —This section not now applicable to wine and beer.)

“Sec. 10; From and after the ratification of this act the possession of liquor by any person not legally permitted under this act to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this act. But it shall not be unlawful to possess liquor in one’s private dwelling while the same is occupied and used by him as his dwelling only, provided such liquor is for use only for the personal consumption of the owner thereof, and his family residing in such dwelling, and of his tona fide guests, when entertained by him therein.” (Supra, sec. 3411 [j]- — ■ this section not now applicable to wine and beer.)”

There is no sufficient evidence that the place where the liquor was found is “one’s private dwelling while the same is occupied and used by bim as bis dwelling only” In S. v. Hardy, 209 N. C., 83 (87), it is said: “All tbe evidence is to tbe effect tbat tbe filling station with bedroom and kitchen were connected and used together. Tbe building 'is not occupied and used by him as his dwelling only.’ Tbe statute was no doubt passed to cover tbe very situation as shown in this case.”

Tbe law in reference to tbe facts in this controversy has been fully set forth recently in S. v. Davis, 214 N. C., 781. Tbe material part we quote: (p. 790), “Under chap. 1, Public Laws 1923, sec. 1, known as tbe Turlington act, it is unlawful to manufacture, sell, transport, import, export, deliver, furnish, purchase, or possess any intoxicating liquors, except in specified instances enumerated in tbe statutes. This is still tbe law in North Carolina except to tbe extent tbat it may be modified or repealed by tbe Alcoholic Beverage Control Acts of 1935, cb. 493 and cb. 418, Public Laws 1935, and of 1937, cb. 49, Public Laws 1937. It is necessary then to examine tbe 1937 act to determine to what extent and under what conditions it is not unlawful to transport liquors in North Carolina. . . . (p. 791). Tbe expressed purpose looking to uniformity and tbe several provisions of tbe act make it apparent tbat certain provisions of tbe 1937 act are to be given Statewide effect. This is particularly true as to tbe transportation provisions with which tbe Turlington Act, cb. 1, Public Laws 1923, conflicts only in respect to liquor being transported to Alcoholic Beverage Control Stores, and whiskey purchased from a County Store and being-transported in a sealed container and in amount not to exceed one gallon for personal use, and as to tbe transportation of a like quantity brought into tbe State in sealed packages and upon which tbe taxes have been paid. Hence, it is still unlawful in this State for any person to possess or transport intoxicating liquors for any purpose other than those specified in tbe act or in a quantity in excess of one gallon, unless such liquor is in actual course of delivery to a County Store. Therefore, cb. 1, Public Laws 1923, in so far as it deals with tbe transportation within the State of intoxicating liquors is not inconsistent with tbe 1937 act except in tbe indicated particulars and it is still in force. S. v. Epps, 213 N. C., 709; S. v. Lockey, supra (214 N. C., 525); S. v. Langley, 209 N. C., 178.”

It is not necessary in tbe warrant or indictment to “include any defensive negative averments, but it shall be sufficient to state tbat tbe act complained of was then and there prohibited and unlawful.” Public Laws 1923, Extra Session, ch. 1, part sec. 9. S. v. Epps, 213 N. C., 709 (716-717). In tbe Davis case, supra, citing numerous authorities, is tbe following: “When defendant relies upon some independent, distinct, substantive matter of exemption, immunity or defense, beyond tbe essentials of tbe legal definition of tbe offense itself, tbe onus of proof as to such matters is upon tbe defendant.”

Tbe county of Anson bas not availed itself of tbe provisions of tbe Alcoholic Beverage Control Act. Tbe court below charged tbe law fully as to reasonable doubt, aiders and abettors, also actual and constructive possession. Tbe defendants cannot complain of tbe charge of tbe court below; it is more liberal than tbe defendants were entitled to. Tbe court below left it to tbe jury to say whether tbe place was a “dwelling only.” Under all tbe evidence, tbe possession of tbe liquor, as disclosed by tbe evidence, was unlawful.

In tbe judgment of tbe court below, we find

No error.