State v. Brady

72 S.E.2d 675 (1952)

236 N.C. 295

STATE v. BRADY.

No. 218.

Supreme Court of North Carolina.

October 8, 1952.

*676 Harry McMullan, Atty. Gen., and I. Beverly Lake, Asst. Atty. Gen., for the State.

D. E. McIver, Sanford, and McLean & Stacy, Lumberton, for defendant, appellant.

ERVIN, Justice.

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

1. Under the relevant section of the Turlington Act, i. e., G.S. § 18-11, as modified by applicable provisions of the Alcoholic Beverage Control Act, i. e., G.S. § *677 18-49 and G.S. § 18-58, the possession by the accused, even within his private dwelling, of more than one gallon of intoxicating liquor upon which the 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. State v. Barnhardt, 230 N.C. 223, 52 S.E.2d 904; State v. Wilson, 227 N.C. 43, 40 S.E.2d 449; State v. Watts, 224 N.C. 771, 32 S.E.2d 348; State 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 Beverage 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. State v. Barnhardt, supra; State v. Hammond, 188 N.C. 602, 125 S.E. 402.

3. 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. State 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 bona 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.