State v. Brady, 236 N.C. 295 (1952)

Oct. 8, 1952 · Supreme Court of North Carolina

236 N.C. 295

STATE v. DOUG BRADY.

(Filed 8 October, 1952.)

1. Intoxicating liquor § 2—

In counties not electing to operate county liquor stores, the Turlington Act applies as modified by the provisions of the Alcoholic Beverage Control Act applicable to such counties.

Ü. Same—

In a county not electing to operate county liquor stores, the provisions of G.S. 18-11 as modified by G.S. 18-49 and G.S. 18-58, renders the possession of more than one gallon of tax-paid liquor, even though in the home of a resident, prima facie evidence that such liquor is kept for the purpose of sale in a prosecution under a warrant or indictment charging that offense, but nevertheless such resident may lawfully have in his home while occupied by him as his dwelling only, an unlimited quantity of tax-paid liquor for the personal consumption of himself, his family and dona fide guests when entertained by him therein.

3. Criminal law § 53d—

It is the duty of the trial judge to charge as to the law upon every substantial feature of the ease embraced within the issue and arising on the evidence without any prayer for special instructions.

4. Intoxicating Liquor § 9f—

In a prosecution of a resident of a county which has not elected to operate county liquor stores on a charge of possession of intoxicating liquor for the purpose of sale, the court is under duty to instruct the jury upon evidence that three gallons of tax-paid liquor was found in defendant’s home, that such possession by defendant in his dwelling for the personal consumption of himself, his family and his dona fide friends therein would be lawful, and error in failing to give such instruction is emphasized by a charge that a person has a right to have one gallon of tax-paid liquor in his home for the personal use of himself and his dona fide guests.

Appeal by tbe defendant from Stevens, J., and a jury, at July Term, 1952, of Lee.

Criminal prosecution tried de novo in tbe Superior Court on an appeal by tbe defendant from tbe judgment of tbe County Criminal Court of Lee County upon a warrant charging tbe defendant with having and keeping in possession for tbe purpose of sale intoxicating liquor upon which tbe taxes imposed by law bad been paid.

Tbe only evidence at tbe trial was that presented by tbe State. It tended to show that tbe defendant’s dwelling was located near Sanford in Lee County; that it was occupied and used by him as bis private dwelling only; that on 10 November, 1951, three deputy sheriffs of Lee County went to tbe defendant’s dwelling with a search warrant and searched it for intoxicating liquor; and that they found within tbe dwelling twenty-four pints of intoxicating liquor upon which tbe taxes imposed by law bad been paid.

Tbe jury found tbe defendant “guilty of possession of whiskey for tbe purpose of sale,” and tbe presiding judge sentenced him to imprisonment as a misdemeanant. Tbe defendant excepted and appealed, making assignments of error sufficient to present tbe questions discussed in tbe opinion which follows this statement of facts.

Attorney-General McMullan and Assistant Attorney-General Lake for the State.

D. E. Mclver and McLean & Stacy for defendant, appellant.

EbviN, J.

Lee County has not elected to operate county liquor stores under tbe Alcoholic Beverage Control Act of 1937. In consequence, this case is controlled by tbe Turlington Act of 1923 as modified by tbe provisions of tbe Alcoholic Beverage Control Act applicable to counties not engaged in operating county liquor stores. S. v. Fuqua, 234 N.C. 168, 66 S.E. 2d 667; S. v. Welch, 232 N.C. 77, 59 S.E. 2d 199.

These propositions are established law in counties which do not operate county liquor stores under tbe Alcoholic Beverage Control Act of 1937 :

1. Under tbe relevant section of the Turlington Act, i.e., G-.S. 18-11, as modified by applicable provisions of tbe Alcoholic Beverage Control Act, i.e., G.S. 18-49 and G.S. 18-58, tbe possession by tbe accused, even within his private dwelling, of more than one gallon of intoxicating liquor upon which tbe taxes imposed by law have been paid constitutes prima facie evidence that such liquor is kept for the purpose of being sold where the accused is charged with the commission of that offense by the indictment or warrant. 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. Watts, 224 N.C. 771, 32 S.E. 2d 348; S. v. Suddreth, 223 N.C. 610, 27 S.E. 2d 623.

2. Under the relevant section of the Turlington Act, i.e., G.S. 18-11, as modified by the applicable provisions of the Alcoholic Leverage Control Act, a person may lawfully .have or keep in his private dwelling while the same is occupied and used by him as his dwelling only an unlimited quantity of intoxicating liquor upon which the taxes imposed by law have been paid for use only for the personal consumption of himself, and of his family residing in such dwelling, and of his bona, fide guests when entertained by him therein. S. v. Barnhardt, supra; S. v. Hammond, 188 N.C. 602, 125 S.E. 402.

Under G.S. 1-180, it is obligatory for the trial judge to charge the jury as to the law upon every substantial feature of the case embraced within the issue and arising on the evidence without any special prayer for instruction to that effect. S. v. Ardrey, 232 N.C. 721, 62 S.E. 2d 53.

The evidence at the trial indicated that on the occasion named in the warrant the defendant had in his possession in his private dwelling while the same was occupied and used by him as his dwelling only twenty-four pints, i.e., three gallons, of intoxicating liquor upon which the taxes imposed by law had been paid. The jury could have drawn either one of these opposing inferences from the evidence: That the defendant had the liquor for the purpose of sale; or that the defendant possessed the liquor for his own personal consumption. The jury might well have drawn the latter inference and acquitted the defendant had it been given proper instructions respecting his legal right to possess an unlimited quantity of tax-paid liquor in his private dwelling for his own personal consumption. The trial judge gave the jury no instruction whatever on this substantial feature of the case beyond that embodied in the erroneous statement that “a person has a right to have one gallon of tax-paid liquor for his own use in his home for the use of his bo.na fide guests.” Law and logic unite in the declaration that the express mention of one thing implies the exclusion of another.

For the reasons given, the defendant is awarded a

New trial.