State v. Potter, 185 N.C. 742 (1923)

May 16, 1923 · Supreme Court of North Carolina

185 N.C. 742

STATE v. ENOCH POTTER.

(Filed 16 May, 1923.)

1. Intoxicating Liquor — Spirituous Liquor — Evidence—Statutes—Prima Eacie Case — Nonsuit—Trials.

Evidence that large quantities of whiskey were found concealed in the defendant’s dwelling and on his premises, that a pathway led from the defendant’s house to several stills having the appearance of their recent operation, constitutes prima facie evidence that it was in violation of O. S., 3379, and defendant’s motion to dismiss as in case of nonsuit is properly disallowed.

2. Verdict — Surplusage — Intoxicating Liquor — Spirituous Liquor — Ambiguity — Statute.

Where the evidence of possession of whiskey by defendant is prima facie sufficient to show his unlawful purpose of sale, a verdict of “guilty of having too much liquor in his possession for the purpose of sale” is not objectionable as not responsive to the issue; or ambiguous admitting of explanation by reference to -the evidence and the charge, the words “too much” being regarded as surplusage.

Appeal by defendant from McElroy, J., at Fall Term, 1922, of Watauga.

Tbe defendant was convicted of a violation of tbe prohibition law, and be appealed.

Attorney-General Manning and, Assistant Attorney-General Nash for the State.

Lowe & Love for defendant.

Adams, J.

Tbe State’s evidence tended to show these circumstances: In May, 1920, tbe officers searched the defendant’s premises and found whiskey in an old bouse a short distance from bis dwelling. In tbe “loft” they found one gallon in a jug and concealed in tbe ground a barrel containing twenty gallons. Tbe barrel was covered with boards and tbe boards with trash. About 500 yards from tbe defendant’s bouse were two still sites, at one of which a still bad recently been operated. At each of these sites tbe officers found “spent beer,” and in tbe defendants bouse they found a fermenter which bad been used within tbe three or four months nekt preceding. There was a path between tbe dwelling and tbe old bouse and another between tbe old bouse and one of tbe still sites. There was other evidence for tbe State, arid evidence for tbe defendant in rebuttal.

Tbe defendant first excepted to tbe court’s refusal to dismiss tbe action as in case of nonsuit, but according to repeated decisions tbe exception is clearly untenable. S. v. Carlson, 171 N. C., 818; S. v. Jenkins, 182 N. C., 818; S. v. Clark, 183 N. C., 733.

The statute makes it unlawful for any person to have or keep in bis possession any spirituous liquors for the purpose of sale, and provides that the possession of more than one gallon at any one time shall constitute prima facie evidence of a violation of the statute. C. S., 3379. the jury returned for their verdict, “Guilty of having too much liquor in bis possession for the purpose of sale.” the defendant excepted on the ground that the verdict is not responsive to the issue, but this position cannot be sustained. the verdict is not insufficient as in S. v. Parker, 152 N. C., 790; S. v. Whitaker, 89 N. C., 472, and S. v. Hudson, 74 N. C., 246; nor ambiguous, admitting of explanation by reference to the evidence and charge, as in S. v. Gilchrist, 113 N. S., 674; S. v. Gregory, 153 N. C., 646, and S. v. Brame, ante, 631; but it is to be construed as if the words “too much,” which are surplusage, bad been omitted. S. v. McKay, 150 N. C., 813; S. v. Snipes, post, 743.

"We find no error in tbe record.

No error.