State v. . Mostella , 159 N.C. 459 ( 1912 )

Indictment for keeping liquor on hand for sale contrary to law. There was verdict of guilty. Judgment, and defendant excepted and appealed. The statute applicable, chapter 21, Laws Extra Session 1908, makes it unlawful for persons other than duly licensed druggists to have or keep for sale, barter, or exchange spirituous, vinous, malt, or other intoxicating liquors in the county of Richmond. By section 2, the having on hand more than one quart of the liquors in question by persons other than duly licensed druggists is made prima facie evidence of guilt.

There was ample evidence to sustain the verdict, and we find no reversible error which entitles defendant to a new trial of the issue.

There was evidence on the part of the State tending to show that defendant was proprietor of a poolroom, and among other things found on defendant's premises tending to establish the charge, including four half-pint bottles of whiskey in a bed under the cover, castor (461) shucks used to cover bottles, empty bottles, etc., the officer, a short time prior to indictment found a bucket containing 58 ounces of corn whiskey under the pool-room table. This the officer poured out into a large bottle, and it was produced at the trial, defendant contending there was error because it had been poured out of the bucket and on that account was no longer admissible as evidence. The officer gave the very natural explanation that he did this because he was afraid it might be overturned. The article was produced because of a claim made by defendant that the contents of the bucket was not whiskey. The objection urged goes to the force of the circumstance, but in no way affects the relevancy. Defendant objected further to a portion of his Honor's charge, as follows: "The law presumes the defendant is innocent, and requires the State to satisfy you beyond a reasonable doubt that he had intoxicating bitters in his possession for the purpose of sale within the county of Richmond within two years from the date of this bill of indictment. It does not make any difference what whiskey, whether this particular whiskey or any whiskey, if this evidence satisfies you beyond a reasonable doubt that he kept whiskey in his possession for the purpose of sale in violation of this act, it would be your duty to return a verdict of guilty," the objection being that the inquiry should have been confined to the precise time laid in the bill. But it is well understood that when time is not of the essence, the date laid in the bill is ordinarily not considered as restrictive or controlling on the question of proof. S. v. Williams, 117 N.C. 753. We find nothing in the charge as to reasonable doubt that is calculated to affect defendant's rights adversely or that was likely in any way to have misled the jury. S. v. Whitson,111 N.C. 695.

No error.

Cited: S. v. Wilkerson, 164 N.C. 442.

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