State v. . Tate , 210 N.C. 168 ( 1936 )

CLARKSON, J., concurs in result. Criminal prosecution, tried upon warrant charging the defendant with unlawfully "having in his possession, for the purpose of sale, 1 1/2 gallons of untax-paid whiskey," etc., in violation of the New Hanover County Alcoholic Beverage Control Act, ch. 418, sec. 21, Public Laws 1935.

The record discloses that on 18 October, 1935, two police officers, with search warrant, went to the home of the defendant in New Hanover County and found there three half-gallons of liquor.

The defendant testified that he did not have the liquor for sale, but solely for the purpose of giving his wife a surprise party, and he introduced four witnesses who testified they had been invited to the party.

Verdict: Guilty.

Judgment: Ten months on the roads.

Defendant appeals, assigning errors. Under C. S., 3379, which is not in conflict with the New Hanover County Alcoholic Beverage Control Act, ch. 418, Public Laws 1935, and therefore not repealed thereby (S. v. Langley, 209 N.C. 178), the possession of more than a gallon of spirituous liquor is prima facie evidence of its possession for the purpose of sale. S. v. Hammond, 188 N.C. 602,125 S.E. 402; S. v. Bush, 177 N.C. 551, 98 S.E. 281. Hence, the evidence was sufficient to carry the case to the jury and to warrant a conviction. S. v.Ellis, ante, 166.

The defendant contends that under the Turlington Act, 3 C. S., 3411 (j), the possession of the liquor in question was lawful. S. v. Dowell,195 N.C. 523, 143 S.E. 133. This statute was expressly rendered inapplicable to New Hanover County by ch. 418, Public Laws 1935.

There was a slight inaccurate statement by the Judge in his charge, but taken as a whole, the lapsus linguae was neither misleading nor prejudicial. The verdict and judgment will be upheld.

No error.

CLARKSON, J., concurs in result.