State v. Denton

Brown, J. Under tbe Search and Seizure Act of 1913, a warrant was sworn out against tbe defendant, charging him with having in his possession, for tbe purpose of sale, 29 barrels of whiskey, 71 half-pints, and 38 quarts of corn whiskey. The action was originally tried in the recorder’s court of Edge-combe County, and, upon conviction, the defendant appealed to the Superior Court. In the Superior Court the evidence disclosed that under a proper search warrant a lawful officer found concealed in different part? of the livery and feed stables of the defendant a large quantity of whiskey in quart, pint, and half-pint bottles, all of which was claimed by the defendant as his own. There was no. evidence of any sale by the defendant, nor by any one in his presence, nor by any one to his knowledge; but there was evidence of sale by another upon the premises of the defendant. It further appeared that all of this whiskey was shipped into the State of North Carolina and delivered to the defendant prior to 1 April, 1913. The whiskey was found in defendant’s possession 17 April, 1913. The Search and Seizure Act of 1913, ch. 44, contains these provisions: *532 “Sec. 9. Tbat tbis act shall not apply to any act committed prior to its ratification. “Sec. 10. Tbat tbis act shall be in force from and after the first day of April, 1913.” “Ratified 3 March, 1913. 1. The first point pressed by the learned counsel for the defendant is tbat, the recorder’s court bad no jurisdiction, and tbat the defendant should have been indicted in the Superior Court and tried upon such bill. We are of opinion that tbis question has been settled at least by a majority of tbis Court by repeated decisions adverse to such contention. S. v. Lytle, 138 N. C., 738; S. v. Dunlap, 159 N. C., 491. 2. It is assigned as error tbat the court instructed the jury: “Upon the foregoing facts the court stated tbat be would bold tbat the Search and Seizure Law of 1913 applied to tbis case, and instructed the jury tbat the possession of liquor in the quantity as testified to constituted a prima facie case, and tbat if they should find beyond a reasonable doubt -the facts to be true, and should further find purpose of sale, then they should return a verdict of guilty, but otherwise they should return a verdict of not guilty.” The form and phraseology of this charge is in complete conformity to what is said in S. v. Wilkerson, ante, 431, and. S. v. Russell, ante, 482. But the learned counsel contends tbat the court erred in applying the rule of evidence prescribed in the statute to tbis case, and tbat under the facts the law as to tbis defendant is ex post facto. We do not think tbis position is tenable. A statute is ex post facto which by its necessary operation and in its relation to the offense or its consequences alters the situation of the accused to bis disadvantage. Thompson v. Missouri, 171 U. S., 386; Thompson v. Utah, 170 U. S., 343. At the time tbis offense occurred, tbat is, when the liquor was found in defendant’s possession, the law bad been in force seventeen days. The statute by express language does not apply to *533 acts committed prior to its ratification, which was on 3 March, 1913. The record does not show that this liquor was acquired prior to that date. In any event the defendant had 'full opportunity to get rid of his liquor, which he could have done by shipping it out of the State between the ratification of the act and the date it was found in his possession. It was his own folly that he continued to retain it in violation of the statute. No error. Walker and AlleN, JJ. "We do not agree to the proposition that a judgment of imprisonment, with power to work on the public roads, is legal, under our Constitution, without the intervention of a grand jury; but a majority of the Court having heretofore decided otherwise, we concur in the result in this case.