State v. Hill

73 S.E.2d 894 (1953)

236 N.C. 704

STATE v. HILL.

No. 508.

Supreme Court of North Carolina.

January 6, 1953.

*895 Atty. Gen. Harry McMullan, Asst. Atty. Gen., Claude L. Love, and Robert L. Emanuel, of Staff, Raleigh, for the State.

Max L. Childers, Mt. Holly, for defendant appellant.

BARNHILL, Justice.

There is no statutory limit upon the quantity of legally acquired liquor, upon which the taxes imposed by law have been paid, a person may lawfully have or keep in his private dwelling, while the same is occupied and used by him as his dwelling only, for the "family use" purposes prescribed in G.S. § 18-11. State v. Barnhardt, 230 N.C. 223, 52 S.E.2d 904; State v. Brady, 236 N.C. 295, 72 S.E.2d 675.

Yet in a prosecution for the unlawful possession of intoxicating liquor for the purpose of sale, proof of the possession by the accused of more than one gallon of bonded or tax-paid liquor, even within his private dwelling, invokes the prima facie rule of evidence created by G.S. § 18-11. State v. Barnhardt, supra; State v. Suddreth, 223 N.C. 610, 27 S.E.2d 623; State v. Wilson, 227 N.C. 43, 40 S.E.2d 449; State v. Brady, supra.

So then, when we sweep aside the chaff and come to the substance of the material exceptions brought forward and discussed by the defendant, we find that two questions are presented for decision: (1) Does the statute, G.S. § 18-11, permit a person to possess in his private dwelling, when occupied as such, for the "family use" purposes prescribed in G.S. § 18-11, illicit "white" "moonshine" intoxicating liquor, that is, any alcoholic beverage "upon which the taxes imposed by the laws of congress of the United States or by the laws of this state, have not been paid", G.S. § 18-48, and secondarily, if so, (2) is the prima facie rule of evidence created by G.S. § 18-11 applicable only upon proof of the possession of more than one gallon of such illicit liquor?

It would seem that we have already answered these questions. Even so, clarification *896 and reconciliationto the point of modificationof some of our former decisions on this particular phase of our law regulating the possession, use, and sale of intoxicating beverages is essential.

The Turlington Act, now G.S. ch. 18, art. 1, except as modified and repealed by the Alcoholic Beverage Control Act, known as the ABC Act, now G.S. ch. 18, art. 3, is still the law in this State. State v. Davis, 214 N.C. 787, 1 S.E.2d 104; State v. Welch, 232 N.C. 77, 59 S.E.2d 199; State v. Brady, supra; State v. Avery, 236 N.C. 276, 72 S.E.2d 670, 672. This was true even before the adoption of our General Statutes. State v. Davis, supra. Now that both the Turlington Act and the ABC Act have been brought forward and re-enacted as separate articles of the same chapter of the General Statutes and relate to the same subject matter, they must, of necessity, be considered as separate but related parts of the composite body of our statutory law on the subject.

"The two Acts constitute the body of our law relating to the purchase, possession, and sale of intoxicating liquor and must be construed in pari materia." State v. Avery, supra.

G.S. § 18-48, which originally was sec. 13 of the ABC Act, ch. 49, P.L. 1937, makes it unlawful for any person "to have in his * * * possession any alcoholic beverages * * * upon which the taxes imposed by the laws of congress of the United States or by the laws of this state, have not been paid * * *" and G.S. § 18-50, sec. 15 of the ABC Act, makes it unlawful to possess such illicit liquor for the purpose of sale.

In applying these sections we said in State v. Lockey, 214 N.C. 525, 199 S.E. 715, that in a prosecution for the sale of illicit liquor under G.S. § 18-50, the prima facie rule of evidence created by G.S. § 18-11, a part of the Turlington Act, may not be invoked in aid of the prosecution. This ruling was reiterated in State v. McNeill, 225 N.C. 560, 35 S.E.2d 629, and in State v. Peterson, 226 N.C. 255, 37 S.E.2d 591.

We have since said, however, that when the two Acts are construed in pari materia, "it becomes apparent that an allegation in a warrant or bill of indictment to the effect that the Federal and State taxes had not been paid upon the liquor seized or that it was illicit liquor is merely descriptive, State v. Merritt, 231 N.C. 59, 55 S.E.2d 804, and does not * * * limit the prosecution to any particular section of the liquor law or deprive the State of the benefit of the general provisions of the law as it now exists." State v. Avery, supra.

The time has come to clarify and reconcile these decisions to the end there may remain no doubt as to whether we have overruled State v. Lockey, supra, and the cases to like effect above cited.

The provisions of G.S. §§ 18-50 and 18-11 are not irreconcilable. Indeed, when the two statutes are considered as related parts of the composite whole, they become dovetailed in such manner as to make a clear and understandable regulation. The term "not legally permitted", as used in G.S. § 18-11, and the term "illicit" as used in G.S. § 18-50, may not be equally comprehensive, yet both designate or describe a type of intoxicating beverage a person may not lawfully possess for the purpose of sale. To that extent at least they are synonymous. We conclude, therefore, that, except as hereinafter noted, the rule of evidence created by G.S. § 18-11 applies in any prosecution for the possession of liquor for the purpose of sale.

This conclusion, of necessity, overrules the statement to the contrary contained in State v. Peterson, supra, and the decisions upon which that opinion was made to rest. More mature consideration compels such action. And the writer, the author of the opinion in the Peterson case, has long since learned that a person should never assume a position that he cannot back upfrom.

The provisions of G.S. §§ 18-48 and 18-50 are statewide in application. State v. Davis, supra. The possession of any quantity of liquor upon which the Federal and State taxes have not been paid is, without exception, unlawful. State v. Barnhardt, supra; State v. McNeill, supra; *897 State v. Avery, supra; State v. Fuqua, 234 N.C. 168, 66 S.E.2d 667; State v. Parker, 234 N.C. 236, 66 S.E.2d 907. Such contraband liquor does not come within the exceptive provisions of G.S. § 18-11. It cannot be either legally acquired or possessed, and possession in the private dwelling of the accused, for whatever purpose it is there kept, affords no protection against the positive and unqualified provisions of the ABC Act. State v. Suddreth, supra; State v. McNeill, supra; State v. Barnhardt, supra; State v. Avery, supra; State v. Jenkins, 234 N.C. 112, 66 S.E.2d 819.

The sentence contained in State v. Barnhardt, supra, 230 N.C. at page 226, 52 S.E. 2d at page 906, to wit: "Under this section no distinction is made between tax-paid and nontax-paid liquor, and the quantity of liquor which may be possessed in one's private dwelling for personal consumption and family uses is unlimited." merely refers to the contents of G.S. § 18-11. It has no relation to the provisions of G.S. § 18-48 and was not intended to mean and must not be construed to mean that the law condones or permits the possession of illicit liquor in the home or elsewhere. That is one type of intoxicating beverage which is outlawed by the statute under any and all conditions, without exception. And proof of possession of any quantity thereof invokes the application of the rule of evidence contained in G.S. § 18-11.

Of course there was technical error in the charge "that a person has a right in a non-conforming county such as this to possess in his home not to exceed one gallon of tax-paid liquor. * * * Now, you have a legal right to possess not to exceed one gallon of whiskey in your home." But on this record we do not perceive that the error was prejudicial to defendant. Indeed, the court thus, in effect, charged the jury that the possession by the defendant in his home of the four pints of bonded whiskey and one pint of gin which disclosed by the stamps thereon that it had been acquired from an ABC store was lawful and evidence in respect thereto should not be considered adversely to defendant unless, as later stated, the State established beyond a reasonable doubt, unaided by any presumption, that he in fact had it in his possession for the purpose of sale.

Perhaps there is some confusion or misunderstanding as to the "one gallon" rule respecting tax-paid liquor. Under the Turlington Act proof of the possession of any quantity of liquor, even in one's private dwelling, invoked the application of the presumption or rule of evidence created by G.S. § 18-11 and the burden rested upon defendant to show that it was possessed in his private dwelling while occupied as such for the "family use" purposes permitted by statute. This rule was modified as to legally acquired liquor by the ABC Act. We so held in State v. Suddreth, supra. There, Winborne, J., speaking for the Court, said: "To accept this construction (of the ABC Act) is to attribute to the legislature the intention to make it lawful for a person to purchase, transport and possess in his home for the purposes mentioned, not more than one gallon of intoxicating liquors or alcoholic beverages, and, at the same time, to make the possession of it evidence of his guilt of a criminal offense for which, upon charges being preferred, he may be convicted by a jury and subjected to punishment therefor. We cannot assume that the legislature had any such inconsistent and conflicting intentions." [223 N.C. 160, 27 S.E.2d 626.]

In short, we there held that, in a prosecution for the unlawful possession of intoxicating liquor for the purpose of sale, proof of possession by defendant in his private dwelling of not more than one gallon of legally acquired liquor raises no presumption against him and that in such case, nothing else appearing, a verdict of not guilty should be directed. On the question of the burden of proof as to whether the liquor was legally acquired, see State v. Holbrook, 228 N.C. 582, 46 S.E.2d 842.

In the trial below we find

No error.

PARKER, J., took no part in the consideration or decision of this case.