State v. . Mull

Stacy, C. J., after stating the case: The fact situation, out of which the law of this case arises, especially when viewed in the light of the verdict, is different from any heretofore presented for our consideration. The eighth count in the bill of indictment is bad, and may be disregarded. It was said in S. v. Hammond, 188 N. C., 602, that the mere receipt of liquor, in one’s home, for a lawful purpose, is not forbidden by any proper construction of the statute. The word “receive” is nowhere used in the statute; hence, the verdict on the eighth count is apparently without warrant of law. The mere possession of intoxicating liquor at any place, whether in one’s private dwelling or elsewhere, is made by the statute “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.” C. S., 3411 (j); S. v. Hammond, supra; S. v. Meyers, 190 N. C., 239. The statute further provides: “But it shall not be unlawful to possess liquor in one’s private dwelling 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.” Here the jury has acquitted the defendant on the fourth count, in which he was charged with' having in his possession spirituous liquors for the purpose of sale, and he is not charged with having it in his possession for the purpose of giving it away, or otherwise disposing of it, in violation of the provisions of the Turlington Act. Chapter 1, Public Laws 1923. We are, therefore, face to face with the question as to whether the mere possession in one’s home of two-thirds of a pint of liquor is unlawful when there is neither finding nor allegation that such possession is for a purpose condemned by the statute. We agree with the learned Assistant Attorney-General, Mr. Nash, that on the record as presented, the conviction in the instant case cannot be sustained. The jury has found that the liquor in question was not kept *670 by tbe defendant for the purpose of sale, and there is no charge in the bill of indictment that it was kept for the purpose of being “given away, or otherwise disposed of.” Hence, if it be lawful to possess liquor in one’s private dwelling, occupied only as such, for the personal consumption of the owner, his family and bona fide guests when entertained therein, we apprehend the failure so to use the liquor, thus kept in one’s home, would not make its possession therein unlawful, unless, in addition, such liquor were kept there for some purpose condemned by the statute, with which the present defendant has either been acquitted or not indicted. Furthermore, if the statement of the woman in the house, who does not appear to have been the defendant’s wife, agent or servant, is to be believed, it would appear that the bottle was not in the actual or constructive possession of the defendant. There was no evidence of any possession outside of -the defendant’s private dwelling, as was the case in S. v. Baldwin, ante, 566, S. v. Sigmon, 190 N. C., 684, S. v. Meyers, ibid., 239, S. v. McAllister, 187 N. C., 400, and the jury has not. found that the defendant had the liquor in his home for any purpose condemned by the statute. ¥e are, therefore, of opinion that, on the record, the defendant is entitled to be discharged. Eeyersed.