Defendant based bis motion for judgment as of non-suit upon the 'theory that there was a fatal variance between the allegations in the bill of indictment and the State's evidence. He strongly argues that the bill of indictment was based upon the Turlington Act, G-.S. 18-1, et seq., and that the proof tended to support a violation of the State Alcoholic Beverage Control Act, G.S. 18-36, et seq. The bill of indictment makes no reference to any statute. Defendant urges in support of his contention that the sale of liquor was made to an undercover investigator of the State Alcoholic Beverage Control Board whose duties are confined to the enforcement of the statutory law under which he operates. This argument overlooks the fact that the evidence of a violation of the law is the important thing and not the official status of the witness giving the evidence. As a matter of fact, one who had no connection with any agency of the State could have testified that an unlawful sale of liquor was made and such testimony, unimpeached, would be sufficient to justify a conviction.
In the present case, the State based no part of its case upon a presumption, but upon the physical facts of the transportation, delivery, possession and sale of the intoxicating liquor. Matters relating to the position of the witness with respect to the governmental agency are without effect, except for the purpose of attacking the veracity of the witness. All the evidence tended to show that the defendant on two separate occasions, after nine o’clock at night, possessed, transported and sold a fifth of tax-paid liquor. This established the illegality of the sale and was abundantly sufficient to take the case to the jury and support a verdict. S. v. Clark, 234 N.C. 192, 66 S.E. 2d 669; S. v. Marsh, 234 N.C. 101, 66 S.E. 2d 684; S. v. Ellers, 234 N.C. 42, 65 S.E. 2d 503.
It is and has been, since the enactment of the Turlington Act, a violation of the law in North Carolina to transport, sell, possess, and possess for the purpose of sale intoxicating liquor, except as specified in the Alcoholic Beverage Control Act. The bill of indictment unquestionably is sufficient to support a conviction under the evidence offered by the State. S. v. Davis, 214 N.C. 787, 1 S.E. 2d 104.
The unlawful liquor transactions engaged in by the defendant under the testimony of the State upon the night in question is condemned both by the Turlington Act and by the Alcoholic Beverage Control Act. S. v. Barnhardt, 230 N.C. 223, 52 S.E. 2d 904; S. v. Wilson, 227 N.C. 43, 40 S.E. 2d 449; S. v. Carpenter, 215 N.C. 635, 3 S.E. 2d 34; S. v. Davis, supra; S. v. Epps, 213 N.C. 709, 197 S.E. 580; S. v. Langley, 209 N.C. *133178, 183 S.E. 526. As a matter of fact, all undercover agents of tbe State Alcobolic Beverage Control Board are authorized “to see that all tbe laws relating to tbe sale and control of alcobolic beverages are observed and performed.” G.S. 18-39.
Tbis statutory law furnished full authorization for tbe procedure used by tbe State’s witness and placed upon him tbe duty of enforcing tbe provisions of both tbe Turlington Act and tbe Alcobolic Beverage Control Act. Tbe State’s evidence was clear, unambiguous and susceptible of only one construction. Therefore, it was not error for tbe court to charge tbe jury that if it found beyond a reasonable doubt that tbe evidence offered by tbe State was true, tbe burden being upon tbe State to so satisfy them, then it would be their duty to return a verdict of guilty as charged; otherwise, to return a verdict of not guilty. S. v. Balter, 229 N.C. 73, 48 S.E. 2d 61; S. v. Dickens, 215 N.C. 303, 1 S.E. 2d 837; S. v. Langley, supra.
Tbe solicitor has tbe duty of developing tbe case for tbe State and be may call any or all of tbe witnesses subpoenaed for tbe prosecution, but bis failure to call a particular witness does not constitute reversible error. S. v. Harris, 166 N.C. 243, 80 S.E. 1067; S. v. Smallwood, 75 N.C. 104.
Tbe defendant strongly argues that tbe court committed error in that portion of tbe charge which relates to the evidence of tbe undercover agent by failing to instruct tbe jury to scrutinize bis testimony as that of an interested or biased witness. Tbe defendant made no request in writing for special instructions on tbis point. His oral request- made at tbe conclusion of tbe charge was too late. S. v. Hicks, 229 N.C. 345, 49 S.E. 2d 639; S. v. Spencer, 225 N.C. 608, 35 S.E. 2d 887; S. v. Spillman, 210 N.C. 271, 186 S.E. 322. However, tbe presidingfjudge substantially complied with tbis belated request by saying to the/jury, “Yes, sir, gentlemen, you may scrutinize bis credibility; but if you find what be said is true, and beyond a reasonable doubt, it would be your duty to return a verdict of: ‘Guilty as charged.’ ” S. v. Love, 229 N.C. 99, 47 S.E. 2d 712.
Tbe use of tbe word “may” instead of “should” in this excerpt from tbe charge is not prejudicial. Green v. Chrismon, 223 N.C. 724, 28 S.E. 2d 215; Felton v. Felton, 213 N.C. 194, 195 S.E. 533; Rector v. Rector, 186 N.C. 618, 120 S.E. 195; Jones v. Commissioners, 137 N.C. 579, 50 S.E. 291; Manufacturing Co. v. Brower, 105 N.C. 440, 11 S.E. 313; Johnston v. Pate, 95 N.C. 70; Pelletier v. Saunders, 67 N.C. 261.
A careful examination of tbe authorities relied upon by tbe appellant discloses no principle of law which militates against tbe position here stated. On tbe whole record, it appears that the defendant bad a fair trial and that there is no reversible error.
No error.