State v. Hege, 194 N.C. 526 (1927)

Nov. 9, 1927 · Supreme Court of North Carolina
194 N.C. 526


(Filed 9 November, 1927.)

1. Intoxicating Liquor — Spirituous Liquor — Statutes—Possession.— Evidence — Nonsuit—Questions for Jury.

On a trial under an indictment for violating the Turlington Act (eh. 1, secs. 2 and 10, Public Laws of 1923), charging the unlawful possession of intoxicating liquors, evidence in behalf of the State tending to show that the defendant in erecting a gasoline station some distance from the dwelling in which he lived, and at the time of the search he had concealed on the premises of the gasoline station two barrels, in each of which several gallons of whiskey were found: Held,, sufficient to take the case to the jury on defendant’s motion to dismiss upon the State’s evidence: Held further, evidence of such possession before the enforcement of the act in question is no defense thereunder.

2. Same — Unlawful Sale.

Where on a trial for unlawful possession of intoxicating liquor inhibited under the Turlington Act, there is evidence tending to show that on the premises of the defendant’s gasoline station and store two barrels partly containing whiskey were found concealed, buried in the *527ground and encased in concrete oí tlie same character and material as the filling station, etc., testimony of the officer that the barrels, from the indications, had thus been there since the building of the station and store’, is competent as tending to show that the possession of the whiskey was for an unlawful purpose.

3. Same — Appeal and Error — Harmless Error.

Testimony in this case that the defendant when arrested for violating the Turlington Act, told the officer arresting him that once he had been an officer of the law, is held under the facts of this case immaterial to the issue, and at most, its admission was error nonprejudicial to the defendant.

4. Indictment — Intoxicating Liquor — Spirituous Liquor — Sufficiency of Allegations.

Where the indictment sufficiently charges the offense of the unlawful possession of whiskey under the inhibition of the Turlington Act, a charge negativing the exception making it lawful to have such possession for family purposes, etc., is unnecessary to a conviction. 3 O. S., 3411(b). Turlington Act., see. 10.

5. Instructions — Interpretation — Construed as a Whole — Appeal and Error.

An instruction appealed from should be construed contextually as to its related parts, and not disconnectedly, and error then made to appear.

6. Criminal Law — Burden of Pi’oof — Reasonable Doubt.

The reasonable doubt beyond which the State, in a criminal action, must show guilt of the offense charged, is not one which is vain or imaginary, but one based upon reason and arising from the evidence in the case. S. v. Sigmon, 190 N. C., 690, cited and approved.

7. Criminal Law — Evidence—Admissions.

Where the defendant is indicted for violating the Turlington Act by having the unlawful possession of whiskey, testimony of the officers 'making the arrest that the defendant said at the time thereof that.he had been caught and there was no use to deny it, is competent as an admission of guilt by the defendant.

Appeal by defendant from Clayton Moore, Special Judge, and a jury, at May Term, 1927, of Foestth.

No error.

Tbe bill of indictment against defendant contained five counts for violation of tbe prohibition law. Tbe only count tbat needs to be considered is tbe fourth, as follows: “Tbat A. A. Hege, late of tbe county and State aforesaid, on tbe day and date aforesaid, with force and arms, at and in tbe county aforesaid, unlawfully did possess intoxicating liquor, contrary to tbe form of tbe statute in such case made and provided, and against tbe peace and dignity of tbe State.”

Tbe verdict of tbe jury was “Guilty,” and upon this verdict bis Honor pronounced judgment. From tbe judgment rendered defendant appealed to tbe Supreme Court.

*528Tbe material assignments o£ error and necessary facts will be considered in the opinion.

Attorney-General Brummitt and Assistant Attorney-General Nash for the Slate.

J. D. Slawter atad Folg&r & Folger for defendant.

ClakesoN, J.

Tbe State’s evidence, stated briefly, showed: Tbe defendant lived about a mile from tbe city limits of Winston-Salem, on a public road tbree-fourtbs of a mile from tbe Lexington Road. About 100 yards from bis residence be bad a filling-station and little store. Tbe chief of police of Winston-Salem bad a search warrant, and with a deputy sheriff and others searched tbe store. They found two barrels with whiskey in them in tbe basement; one barrel bad a fraction over two gallons, and one bad less than two gallons. Tbe barrels were buried in tbe ground back of a cement wall 6 feet high, 5 to 6 inches thick, and covered over on top with 4 or 5 inches of dirt. Tbe barrels were concealed. A State’s witness testified that defendant stated, “We just caught him; that is all there was to it; there is no use denying it or telling a story'about it.” Tbe capacity of tbe barrels was about 30 gallons each. Tbe barrels bad a sheet of concrete in front and on top of them, a sheet not so much thicker than your band, and through this was a bung with a stopper placed in that. Tbe cement wall bad to be torn down to get tbe barrels out. Tbe defendant admitted be put the barrels in at tbe time tbe foundation of tbe store was laid. Tbe defendant introduced no evidence.

“Chapter 1, section 2, Laws 1923 (known as tbe ‘Turlington (or Conformity) Act’), is as follows: ‘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 tbe provisions of this act shall be liberally construed, to tbe end that tbe use of intoxicating liquor as a beverage may be prevented. Liquor for nonbeverage purposes and wines for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, furnished, and possessed, but only as provided by Title II of “Tbe Yolstead Act,” act of Congress enacted 28 October, 1919, an act supplemental to tbe National Prohibition Act, “H. R. 7294,” an act of Congress approved 23 November, 1921.’ ” S. v. McAllister, 187 N. C., at p. 401. See 3 C. S., 3411(b); S. v. Hammond, 188 N. C., p. 602; S. v. Pierce, 192 N. C., p. 766; S. v. Mull, 193 N. C., p. 668.

*529Evidence tending to show that tbe defendant bad intoxicating liquor in bis possession before tbe passage of tbe Turlington or Conformity Act, is not a defense under its provisions for tbe defendant’s possession a year thereafter upon an indictment under tbe act of possessing intoxicating liquors. S. v. Knight, 188 N. C., 630.

Section 10 of tbe Turlington or Conformity Act is as follows: “From and after tbe ratification of tbis act tbe possession of liquor by any person not legally permitted under tbis act to possess liquor shall be prima facie evidence that such liquor is kept for tbe purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of tbe provisions of tbis act. But it shall not be unlawful to possess liquor in one’s private dwelling while tbe same is occupied and used by him as bis dwelling only, provided such liquor is for use only- for tbe personal consumption of tbe owner thereof, and bis family residing in such dwelling, and of bis bona fide guests when entertained by him therein.” 3 C. S., 3411 (j).

In S. v. Winston, ante, p. 243, it is held that a person cannot purchase intoxicating liquor and then transport same to bis private dwelling used and occupied by .him as such for bis personal consumption or bis family or bona fide guests when entertained by him therein. He is both guilty of purchasing and transporting. Tbe possession may, within tbe statute, be either actual or constructive. S. v. Meyers, 190 N. C., p. 239.

Tbe assignment of error as to tbe officer giving bis impression, from indications about tbe premises, that tbe barrels bad been where they were found ever since tbe store bad been built, cannot be sustained. Comrs. v. George, 182 N. C., p. 414; Kepley v. Kirk, 191 N. C., p. 690. In fact tbis was admitted by tbe defendant.

Tbe assignment of error as to evidence by tbe officers that they bad searched tbe defendant’s premises at least a half dozen times previous to tbis successful search, and denial was made by defendant that “be bad a drop of whiskey in bis bouse,” cannot be sustained.

“In S. v. Tate, 161 N. C., 286, it is held: ‘But such flight or concealment of tbe accused, while it raised no presumption of law as to guilt, is competent evidence to be considered by tbe jury in connection with tbe other circumstances. 12 Cyc., 395; 21 Cye., 941.’ ” S. v. Adams, 191 N. C., at p. 527.

Tbe assignment of error in regard to tbe question asked tbe defendant if be bad not told tbe officer that be bad been an officer himself, cannot be sustained. It was immaterial and harmless. A State’s witness testified tbe defendant admitted be was caught, and there was no use of denying it or telling a story about it.

*530The assignment of error in the refusal to arrest the judgment as the indictment did not charge an offense, cannot be sustained. It is contended by defendant “it is not unlawful to possess liquor, but it is unlawfuEto possess liquor at a place other than one’s dwelling. Therefore, when the bill of indictment simply charges, as in this case, that the defendant did possess intoxicating liquor, the charge is incomplete.” The indictment is under section 2, 3 C. S., 3411(b). The exception in section 10, C. S., 3411 (j), need not be negatived in the indictment. S. v. Hammond, supra; S. v. Moore, 166 N. C., p. 284. In section 10 the possession is prima facie evidence that the person kept it for sale, etc. S. v. Mull, supra.

The assignment of error as follows cannot be sustained: “But if you find it (meaning liquor) was not in his dwelling, but that he had it in his possession in this garage or outbuilding, according to the contention of the State, which was some feet removed, then his possession there would be unlawful under the statute.” The first part of the charge is omitted, as follows: “Gentlemen of the jury, it would be necessary for you to be satisfied beyond a reasonable doubt that this whiskey was not in the dwelling, and the court charges you if you find from this evidence it was in his dwelling, then the possession would not be necessarily unlawful.” S. v. Pierce, supra.

Assignment of error as follows cannot be sustained: “The court charges you if you find this whiskey was not in the dwelling-house where the defendant lived and at his habitation, but was in an outbuilding as has been testified to, if you find from the evidence beyond a reasonable doubt that it was whiskey, then the court charges you it would be your duty to return a verdict of guilty on that count.” The following is the balance of this part of the charge not excepted to: “But if you are not so satisfied, gentlemen of the jury, beyond a reasonable doubt on that count, it would be your duty to return a verdict of not guilty.” The charge of the court must be construed as a whole and not disjunctively. The court below had charged the jury before that the burden was on the State to satisfy them beyond a reasonable doubt of the guilt of the defendant. The court also charged, though not requested (S. v. Boswell, ante, 261), that defendant was presumed to be innocent until the State proved he was guilty beyond a reasonable doubt.

The court charged the jury that they must find beyond a reasonable doubt that there was whiskey in the barrels and it was intoxicating liquor — that is, that it contained one-half of one per cent alcohol capable of producing intoxication. There was no error in this instruction. S. v. Sigmon, 190 N. C., at p. 690.

*531Tbe court below defined reasonable doubt: “Now reasonable doubt in North Carolina is not a vain, imaginary doubt; it means a doubt based upon reason, so the jury would be satisfied to a moral certainty. It is not an imaginative doubt at all.” This is approved in S. v. Sigmon, supra. The whole charge was full and clear, and the case was tried with fairness to the defendant. In fact, all the evidence for the State showed that the filling-station and little store was 100 yards from the defendant’s residence and had no connection with the residence. All the witnesses for the State testified that whiskey was found in the barrels. Defendant himself admitted that he was “caught and there was no use denying it and telling a story about it.” No evidence was introduced by defendant to contradict this admission.

The evidence in the case discloses a flagrant violation of law of which defendant has been convicted. Defendant, an owner of a filling station, concealed in the basement of the store connected with the station two barrels with whiskey in them. This intoxicating liquor which, if sold to his customers who bought gasoline for their automobiles, would no doubt have the effect of having drivers of automobiles on the public highways drinking and dangerous to the life and limb of men, women and children. When the foundation of the store was laid, with premeditation and deliberation, he put the barrels to hold whiskey in, which were ingeniously concealed and covered up. A concealed blind tiger, hard to catch. The officers searched his place time and time again before they caught him. The searching was brought about by evidence in possession of the officers.

On 27 May, 1908, the people of North Carolina voted “Against the manufacture and sale of intoxicating liquors” by a majority of 44,196 votes. This State, in upholding the Eighteenth Amendment to the Constitution of the United States (46 States ratified it, including this State, and 2 against), by an overwhelming majority passed what is known as the Turlington or Conformity Act, not only conforming to the National Act, but making the State Act more stringent. In this State there has been no negative nullification, but positive appropriate legislation to enforce the National Act.

The defendant has deliberately violated the law of his Nation and his State — a law of moral uplift and economic worth, proven to be a blessing and benediction to the human family. In law we can find

No error.