State v. . Langley

183 S.E. 526, 209 N.C. 178, 1936 N.C. LEXIS 418

• Court: Supreme Court of North Carolina
• Decided: January 22, 1936
• Status: Published

Opinion

Connor, J.

The evidence at the trial of this action was sufficient in its probative force to establish the fact, as alleged in the warrant, that on 11 August, 1935, at the service station located on a highway in Nash County and operated by him, the defendant had in his possession more than a gallon of spiritous or intoxicating liquor. All the facts and circumstances shown by the evidence were sufficient to justify the inference by the jury that the defendant had such liquor in his possession for sale. This was a reasonable and permissive inference without regard to any statutory presumption arising from the quantity of liquor in his possession, under the provisions of C. S., 3379 (2), S. v. Hammond, 188 N. C., 602, 125 S. E., 402. Indeed, what other inference, in the absence of any evidence tending to show the contrary, could a jury of intelligent men of good moral character draw from the facts and circumstances shown by all the evidence?

There was no error in the refusal of the trial court to allow defendant’s motion for judgment as of nonsuit. C. S., 4643.

If C. S., 3379, is now and was in force in Nash County on 11 August, 1935, as contended by the State, the fact, as shown by all the evidence, that the defendant had in his possession at said time and place more than a gallon of spiritous liquor, was sufficient in itself to show that the defendant had such liquor in his possession for sale, and was therefore guilty of a violation of the statute. In such case, there being no evidence tending to explain such possession, and to show that it was lawful, there was no error in the instruction of the court to the jury. S. v. Rose, 200 N. C., 342, 156 S. E., 916. In S. v. Singleton, 183 N. C., 738, 110 S. E., 846, it is said: “It is error for the trial judge to direct a verdict in a criminal action when there is no admission or presumption calling for an explanation or reply from the defendant.” In the instant case, if C. S., 3379, is applicable, there was a presumption that defendant had the liquor in his possession for sale. There is no evidence tending to show the contrary.

Where all the evidence at the trial of a criminal action, if believed by the jury, shows facts which are sufficient under the provisions of a valid statute in force at the time of the alleged crime and at the time of the trial to establish the guilt of the defendant, and there is no evidence to the contrary, it is not error for the trial judge to instruct the jury that if they believe all the evidence and find the facts to be as the evidence tends to show, they should find the defendant guilty. In such case, only the credibility of the evidence should be submitted to the jury. In the instant case, the fact, as shown by all the evidence, that the defendant had in his possession more than one gallon of spiritous liquor at his service station on a highway in Nash County, on 11 August, 1935, was sufficient proof of his unlawful purpose, if C. S., 3379, was then in force in Nash County.

C. S., 3379, is section 2 of chapter 44, Public Laws of North Carolina, 1913, as modified by section 8 of chapter 97, Public Laws of North Carolina, 1915. It provides that “it shall be unlawful for any person, firm, association, or corporation, by whatever name called, to have or keep in possession, for the purpose of sale, any spiritous, vinous, or malt liquors.” It further provides that proof of the possession of more than one gallon of spiritous liquor at any one time, whether in one or more places, shall constitute prima, facie proof of a violation of the statute. The statute is constitutional and valid, S. v. Randall, 170 N. C., 757, 86 S. E., 1042, and is State-wide in its application. It is now and has been at all times sinpe its enactment in full force and effect in Nash. County, and in all other counties in this State, unless, as contended by the defendant, it has been repealed, amended, or modified by chapter 493, Public Laws of North Carolina, 1935, known as the Pasquotank County Liquor Control Act.

It is provided in chapter 493, Public Laws of North Carolina, 1935, that if a majority of the qualified voters of Nash County, at an election to be called by the board of county commissioners of said county, and to be held within sixty days from the date of its ratification, shall vote in favor of the sale of intoxicating liquors in said county under the provisions of said act, then and in that event the provisions of Article 8 of chapter 66, of the Consolidated Statutes of North Carolina, Volume III, known as the Turlington Act, shall not apply to Nash County, and that all laws or parts of laws inconsistent with the provisions of said act shall be repealed. There is no provision in said act expressly or by implication repealing, amending, or modifying C. S., 3379, which is not a part of or included within the provisions of the Turlington Act. Only the provisions of the Turlington Act have ceased to apply to Nash County, as the result of the favorable vote in said county with respect to the application of chapter 493, Public Laws of North Carolina, 1935, to said county. There are no provisions of C. S., 3379, which are inconsistent with any provision of chapter 493, Public Laws of North Carolina, 1935. The latter act does not authorize any person to sell or to have in his possession for the purpose of sale, in Nash County, any spiritous, vinous, or malt liquors, which are intoxicating when used as beverages. Only the Nash County Alcoholic Beverage Control Board, composed of three members appointed by the board of county commissioners of said county, may, under the provisions of the act, sell or have in its possession for the purpose of'sale spiritous, vinous, or malt liquors, in Nash County.

We are of opinion, and so hold, that C. S., 3379, is now and has been at all times since its enactment in full force and effect in Nash County, notwithstanding the provisions of chapter 493, Public Laws of North Carolina, 1935.

The judgment in this action is affirmed.

No error.

Schenck and Devin, JJ., dissent on the ground that there was error in the charge of the court. The evidence established only a prima, facie case for the State, and it should have been left to the jury to say whether it satisfied them beyond a reasonable doubt that the defendant had intoxicating liquor in his possession for the purpose of sale. Clarkson. J.. concurs in result.