State v. . Atkinson , 210 N.C. 661 ( 1936 )

Criminal prosecution, tried upon warrant charging the defendant with "having in his possession intoxicating liquors for the purpose of sale, and not bearing the stamp of the A. B. C. Board of Pitt County," etc., in violation of the statute.

The record discloses that on 25 December, 1935, two officers went to the home of the defendant and "found a five-gallon jug of liquor, and Jack Atkinson said it was his — corn whiskey."

There was other circumstantial evidence tending to show that the defendant had the liquor for the purpose of sale.

The defendant demurred to the evidence and moved for judgment as of nonsuit under the Mason Act, C. S., 4643, for that no evidence had been offered to support the allegation in the warrant, "and not bearing the stamp of the A. B. C. Board of Pitt County." Overruled; exception.

Verdict: Guilty.

Judgment: Eighteen months on the roads.

Defendant appeals, assigning errors. The gravamen of the charge against the defendant is, that he kept or had in his possession, for the purpose of sale, spirituous liquors in violation of C. S., 3379. S. v. Langley, 209 N.C. 178, 183 S.E. 526. The additional allegation, "and not bearing the stamp of the A. B. C. Board of Pitt County," was unnecessary and may be regarded as surplusage or as a refinement within the meaning of C. S., 4623. "A refinement is understood to be the verbiage which is frequently found in indictments in setting forth what is not essential to the constitution of the offense, and, therefore, not required to be proved on the trial" — Gaston, J., in S. v. Gallimore,24 N.C. 372. The prosecution was under no obligation to offer evidence of a nonessential averment. S. v. Guest, 100 N.C. 410, 6 S.E. 253.

In addition to the prima facie case, arising from the possession of more than a gallon of spirituous liquors, S. v. Tate, ante, 168, there was other circumstantial evidence tending to show its possession for the purpose of sale. S. v. Rhodes, ante, 473; S. v. Hardy, 209 N.C. 83, 182 S.E. 831. The case was properly submitted to the jury. S. v. Ellis, ante, 166.

No error.