State v. . Dowell , 195 N.C. 523 ( 1928 )

BROGDEN, J., dissenting. The bill of indictment contained 5 counts and charged that defendant (1) unlawfully did sell, barter, furnish, and deliver intoxicating liquor; (2) unlawfully did transport, import and export intoxicating liquor; (3) unlawfully did purchase intoxicating liquor; (4) unlawfully did possess intoxicating liquor; (5) unlawfully did have in possession intoxicating liquor for the purpose of being sold, bartered, exchanged, given away, furnished and otherwise disposed of in violation of the provisions of the act of the General Assembly of North Carolina, enacted at its session 1923, and ratified 1 March, A.D. 1923, being entitled "An act to make the State Law conform to the National Law in relation to intoxicating liquors."

The testimony was to the effect that Guy Scott, a deputy sheriff, in consequence of information received in regard to defendant, procured a search warrant and went with E. J. Conrad and L. Newsom to defendant's home, about 5 miles south of Winston-Salem, on the Lexington road. It was in the middle of the afternoon. "When I was getting out of the car I heard some glass rattling in the house. I ran in the house, and when I went in the kitchen door I met Raymond Dowell's wife coming out of the door. I went in through the kitchen, and into the room, and in that room there was an old like hearth, and liquor was about half an inch deep in this hearth, and a gallon jug and a half-gallon fruit jar had been broken, lying there, and I looked out and saw Dowell going through the field and Mr. Conrad after him. The hearth where the liquor was on it was in the bed room. There were three rooms in this house. This was the defendant's dwelling-house. He and his family lived there, or he said he did."

L. Newsom corroborated Guy Scott, in regard to the liquor and testified further: "As we went in the kitchen door Raymond Dowell jumped out of the bed-room window, which was the middle room, and which was the room the whiskey was in. Defendant ran right down through the field, and Mr. Conrad ran after him and caught him. Mr. Conrad is an officer. . . . The floor was wet all along the floor around the hearth and on the hearth, and a plank torn up in the floor, and there were three empty jugs under the floor. That was the same room in which we found the liquor on the hearth. Defendant jumped out of the window of that room and ran. There was one bed in that room." The defendant introduced no evidence.

The verdict of the jury was we "find the defendant guilty of unlawful possession of intoxicating liquors and possession of intoxicating liquors for the purpose of sale." The defendant moved to dismiss each and every count in the bill of indictment. The court below allowed the motion as to the first, second and third counts, but declined to grant the motion for judgment as of nonsuit or dismiss the action as to the fourth and fifth counts in the bill of indictment. C. S., 4643. We think the court below correct.

Chapter 1, sec. 1, Laws 1923 (known as the Turlington or Conformity Act) in part, is as follows: "The word `liquor' or the phrase `intoxicating liquor' shall be construed to include alcohol, brandy, whiskey, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquors, liquids, and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one-half of one per centum or more of alcohol by volume, which are fit for use for beverage purposes," etc. 3 C. S., 3411(a).

Section 2: "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 the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented. Liquor for nonbeverage purposes and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, furnished, and possessed, but only as provided by Title II of `The Volstead Act,' act of Congress enacted October twenty-eight, one thousand nine hundred and nineteen, an act supplemental to the National Prohibition Act, `R. 7294,' an act of Congress approved November twenty-third, one thousand nine hundred and twenty-one." 3 C. S., 3411(b).

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

The court below, after defining what was actual and constructive possession (S. v. Meyers, 190 N.C. 239), charged the jury, in part, as follows: "The court instructs you that the burden of proof is upon the State to satisfy you beyond a reasonable doubt that he had the liquor in his possession, either actual or constructive, and the court further instructs you that if he did have it in his possession that it would be unlawful, unless he had it in his home for his own use, for his own personal use or the use of his bona fide friends or guests. The possession of liquor anywhere in the home or out of the home is prima facie evidence that he is keeping it for the purpose of violating the law. It is prima facie evidence that he is keeping it in violation of the law, and what is meant by that is, that it is artificial evidence created by the law from certain facts and sufficient to carry the case to the jury, and upon which the jury may act either way. The defendant has not gone upon the stand and testified, but you cannot use that to his prejudice. The court instructs you that if he had this liquor in his home for the purpose of selling it, or for the purpose of giving it away, except as mentioned in the statute, or for the purpose of furnishing it to somebody else, except as mentioned in the statute, he would be guilty, but if he had it in his home for his own bona fide use, his personal use or the use of his bona fide guests, then he would not be guilty (and the court instructs you as to whether or not he had it for that purpose is a matter that is within his own knowledge alone and therefore, the burden is upon him to show that he had it for his own consumption or for the use of his bona fide guests)." The only part of the charge to which exception and assignment of error was made, was the latter part of the charge above set forth in brackets.

The charge of the court was confined to the 4th and 5th counts which we are now considering, the counts under which defendant was convicted: (1) unlawfully did possess intoxicating liquors; (2) unlawfully did have in possession intoxicating liquor for the purpose of being sold.

(1) Under the above statutes, it is unlawful for any person to possess liquor (except as authorized in the act not material here to be considered) and "except in one's private dwelling while the same is occupied and usedby him as his dwelling only, provided such liquor is for use only for thepersonal consumption of the owner thereof and his family residing in suchdwelling and of his bona fide guests when entertained by him therein." The possession of liquor in the private dwelling for any other purpose than as above stated in the exception is unlawful. (2) "The possession of liquor by any person not legally permitted under this act to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this act." This prima facie evidence for sale, etc., applies to the private dwelling or elsewhere. S. v. Mull,193 N.C. p. 668.

We have heretofore construed the act applicable to facts as they were presented in this Court in the particular case. In S. v. McAllister,187 N.C. p. 403, it was held unlawful to possess liquor when not "in one's private dwelling while the same is occupied and used by him as his dwelling only . . . for use only for the personal consumption of the owner thereof and the family residing in such dwelling and of his bona fide guests when entertained by him therein." S. v. Meyers, 190 N.C. 239; S. v. Sigmon,ibid., 684; S. v. Baldwin, 193 N.C. 566. In S. v. Hammond,188 N.C. p. 602, it was held that the statute did not prohibit the receiving of liquor.

In S. v. Knight, 188 N.C. 630, evidence tending to show that the defendant had intoxicating liquor in his possession before the passage of the act, is not a defense under its provisions for the defendant's possession a year thereafter upon an indictment under the act of possessing liquor. The liquor in controversy was not in his private dwelling.

In S. v. Mull, 193 N.C. 668, the liquor was in the private dwelling, there was a verdict of "guilty of receiving and possessing." UnderHammond's case, supra, the verdict for receiving could not be sustained, nor could the verdict for possessing, as the possession was not alleged or shown to be unlawful; and further, the liquor was not in the actual or constructive possession of defendant.

In S. v. Winston, 194 N.C. p. 243, it is held: While section 10 of the Turlington Act (chapter 1, Public Laws 1923, 3 C. S., 3411(j), supra) does not make it a criminal offense for one to have intoxicating liquor in one's private dwelling, occupied and used by him as his dwelling only, for his own personal use or that of his family residing in such dwelling and his bona fide guests when entertained by him therein, it is a violation of the criminal law, by the express provisions of (chapter 1, Public Laws 1923, sec. 2), 3 C. S., 3411(b), for him to either purchase it elsewhere or carry it there.

In S. v. Pierce, 192 N.C. at p. 770, the following charge was sustained: "`Prima facie evidence means that evidence which is received and accepted and continued until the contrary is shown, and you gentlemen of the jury, will remember the evidence, giving the State of North Carolina a fair and an impartial trial, and giving the defendant at bar a fair and impartial trial.' This instruction, standing alone, may be subject to some criticism (S. v. Wilkerson, 164 N.C. p. 431), but in this immediate connection the judge charged the jury as follows: `Now the State has the duty of satisfying you beyond a reasonable doubt of the guilt of the defendant,' etc., and defined reasonable doubt."

In S. v. Smith, 157 N.C. at p. 583, quoting from Joyce on Indictments, sec. 279, the following principle is laid down: "The general rule as to exceptions, provisos, and the like, is that where the exception or proviso forms a portion of the description of the offense, so that the ingredients thereof cannot be accurately and definitely stated if the exception is omitted, then it is necessary to negative the exception or proviso. But where the exception is separable from the description and is not an ingredient thereof, it need not be noticed in the accusation; for it is a matter of defense. But where there is an exception so incorporated with the enacting clause that the one cannot be read without the other, then it is held that the exception must be negatived." S. v. Connor, 142 N.C. 700;S. v. Moore, 166 N.C. 284; S. v. Hege, 194 N.C. 526.

The court below charged correctly as to prima facie evidence. The burden of proof was placed on the State all through the charge and the court below stated several times that the evidence must be sufficient to satisfy the jury beyond a reasonable doubt as to the guilt of defendant. It was not necessary to negative the exception, for it was a matter of defense.

In Archbold's Criminal Pleading, the principle is thus stated (quoting from S. v. Connor, supra, at p. 704): "These negative averments seem formerly to have been proved in all cases by the prosecutor; but thecorrect rule upon the subject seems to be in cases where the subject ofsuch averment relates to the defendant personally, or is peculiarly withinhis knowledge, the negative is not to be proved by the prosecutor, but, on the contrary, the affirmative must be proved by the defendant, as matter ofdefense; (Italics ours) but, on the other hand, if the subject of the averment does not relate personally to the defendant, or be not peculiarly within his knowledge, but either relate personally to the prosecutor, or be peculiarly within his knowledge, or at least be as much within his knowledge as within the knowledge of the defendant, the prosecutor must prove the negative." The principle is well settled in this State. See Speasv. Bank, 188 N.C. at p. 529 and cases cited; Walker v. Parker, 169 N.C. 150;Shaw v. Public-Service Corp., 168 N.C. 611.

In construing the Harrison Anti-Narcotic Act, dealing with the presumption created by statute, in Gee Woe v. United States, 250 Fed. Rep., at p. 429, it is said: "That presumption of this and like kind, rebuttable and explainable by the accused persons, are within the competency of Congress to create, it is well settled. Luria v. United States,231 U.S. 9-25, 34 Sup. Ct., 10, 58 L.Ed., 101; United Statesv. Yee Fing (D.C.), 222 Fed., 154."

In Casey v. United States, Mr. Justice Holmes delivering the opinion of the Court (9 April, 1928) construing said act, says: "With regard to the presumption of the purchase of a thing manifestly not produced by the possessor, there is a `rational connection between the fact proved and the ultimate fact presumed,' Luria v. United States, 231 U.S. 9, 25; Yee Hemv. United States, 268 U.S. 178, 183. Furthermore there are presumptions that are not evidence in a proper sense but simply regulations of the burden of proof. Greer v. United States, 245 U.S. 559. The statute here talks of prima facie evidence but it means only that the burden shall be upon the party found in possession to explain and justify it when accused of the crime that the statute creates. 4 Wigmore, Evidence, sec. 2494. It is consistent with all the constitutional protections of accused men to throw on them, the burden of proving facts peculiarly within their knowledge and hidden from discovery by the government. 4 Wigmore, Evidence, sec. 2486. In dealing with a poison not commonly used except upon a doctor's prescription easily proved, or for a debauch only possible by a breach of law, it seems reasonable to call on a person possessing it in a form that warrants suspicion to show that he obtained it in a mode permitted by the law. The petitioner cannot complain of the statute except as it affects him."

In Donnelley v. United States, Mr. Justice Butler, delivering the opinion of the Court (9 April, 1928), says: "The act is comprehensive and discloses a legislative purpose fully to enforce the prohibition declared by the Eighteenth Amendment. National Prohibition Cases, 253 U.S. 350.Corneli v. Moore, 257 U.S. 491; Vigliotti v. Pennsylvania,258 U.S. 403; Grogan v. Walker Sons, 259 U.S. 80; Everard'sBreweries v. Day, 265 U.S. 545, 560; Lambert v. Yellowley,272 U.S. 581, 595."

The charge in other respects was fair and impartial, giving defendant every legal right. We find in law

No error.