State v. . Wilson

Barnhill, J. Guilford County bas not elected to come under tbe Alcoholic Beverage Control Act. Chap. 49, P. L. 1937, G. S., Chap 18, Art. 3. Hence tbe Turlington Act, Chap. 1, P. L. 1923, G. S., Chap. 18, Art. 1, as modified by tbe general provisions of tbe Alcoholic Beverage Control Act, is in full force and effect within that territory. G. S., 18-61; S. v. Davis, 214 N. C., 787, 1 S. E. (2d), 104. A person living in territory in wbicb ABC Stores are not operated may lawfully transport to and keep in bis private dwelling, for bis own use, not more than one gallon of tax-paid liquor, and such possession raises no presumption against him. S. v. Suddreth, 223 N. C., 610, 27 S. E. (2d), 623. Subject to this exception, possession within such territory of any quantity of liquor is prima facie evidence that it is possessed for tbe purpose of sale, barter, etc., in violation of G. S., 18-2. S. v. Hege, 194 N. C., 526, 140 S. E., 80; S. v. McAllister, 187 N. C., 400, 121 S. E., 739. This rule applies even when tbe liquor is in a private dwelling. S. v. Dowell, 195 N. C., 523, 143 S. E., 133. Tbe provision contained in G. S., 18-11, making it lawful to possess liquor in a private dwelling for family purposes, constitutes an exception to the general rule, and tbe burden of proof in respect thereto is on tbe defendant. S. v. Dowell, supra; S. v. Epps, 213 N. C., 709, 197 S. E., 580. Tbe charge against defendant is laid under Sec. 2 of tbe Turlington Act, G. S., 18-2. Tbe officers found in bis possession approximately 17% gallons of liquor in pint and % pint containers, together with a number of empty cartons, stored in an inner room under lock and key. S. v. Ellis, 210 N. C., 166, 185 S. E., 663. Tbe defendant offered no testimony and there was no evidence offered by tbe State wbicb tends to *46 show that defendant was in possession of the liquor for the use of himself, his family, and his bona fide guests. G. S., 18-11; S. v. Foster, 185 N. C., 674, 116 S. E., 561; S. v. Hammond, 188 N. C., 602, 125 S. E., 402; S. v. Dowell, supra; S. v. Epps, supra. Hence the court committed no error in overruling the motion to dismiss as in case of nonsuit. S. v. Hammond, supra. It likewise follows that evidence tending to show the State tax had not been paid on the liquor seized was competent. S. v. Peterson, 226 N. C., 255, S. v. McNeill, 225 N. C., 560, and S. v. Lockey, 214 N. C., 525, 199 S. E., 715, relied on by defendant, are not in point. In each of those cases the defendant was prosecuted under G. S., 18-50. This section of the general code is a part of the Alcoholic Beverage Control Act and makes it unlawful to possess illicit liquor for sale or to sell either illicit or tax-paid liquor, but it creates no presumption or rule of evidence. S. v. Peterson, supra. When the State proceeds under this section it must prove the offense charged unaided by any presumption. Here, as we have noted, the State proceeded under G. S., 18-2, which is a part of the Turlington Act. When the defendant is prosecuted under this section, G. S., 18-11, a part of the same Act, applies. Herein lies the distinction. The charge of the court to which exceptions are entered was bottomed on and in the language of G. S., 18-11 and 18-13. The law as therein stated constitutes a material part of the law of the case. Therefore the assignments of error based on these exceptions cannot be sustained. But the defendant insists that in any event the court below erred in overruling his motion to dismiss for want of jurisdiction in the Superior Court. We cannot so hold. At the trial in the Superior Court, on an appeal from an inferior court having exclusive original jurisdiction, the solicitor may amend the warrant, S. v. Patterson, 222 N. C., 179, 22 S. E. (2d), 267, S. v. Brown, 225 N. C., 22, S. v. Grimes, 226 N. C., 523, or he may put the defendant on trial under a bill of indictment, charging the same offense, returned in the case. S. v. Razook, 179 N. C., 708, 103 S. E., 67; S. v. Thornton, 136 N. C., 610; S. v. Crook, 91 N. C., 536; S. v. Quick, 72 N. C., 241. The appeal vests jurisdiction in the court. Thereafter all questions of procedure and pleadings, including the form in which the charge is to be stated, come within the purview of the presiding judge. Neither of the two additional counts contained in the bill of indictment was submitted to the jury. No evidence was offered in relation thereto which was not competent on the count submitted. Hence we need not now decide whether the court could incorporate in the warrant or bill of indictment related counts charging violations of the same section of the Act under which defendant is prosecuted. Sec. 2, Ch. 1, P. L. 1923. *47 We have carefully examined tbe other assignments of error and find in them no cause for disturbing tbe judgment. In tbe trial below we findNo error.