State v. Davis
| Decision Date | 01 February 1939 |
| Docket Number | 654. |
| Parties | STATE v. DAVIS. |
| Court | North Carolina Supreme Court |
Criminal prosecution charging that the defendant did unlawfully possess intoxicating liquors for the purpose of sale and unlawfully transport liquors for the purpose of sale.
Officers of Guilford County, having information that liquor was being brought into said county on a designated truck, procured a search warrant and proceeded to attempt to locate the truck. They first sighted it in Randolfh County. After watching the truck and following its movements until it got into Guilford County they stopped it and found the defendant driving the same, accompanied by one Shaffer. The truck bore a Kentucky license tag and a Maryland license tag was found on the inside of the truck, and the defendant later admitted that he had changed the tags. Upon search being made the officers discovered 203 cases of liquor on the inside of the truck. The defendant first said that he had the key to the truck and then claimed that the key was in Baltimore. While the officers were following the truck it stopped and they saw men at the rear. They found fresh hand prints on the back of the truck around the lock. The spare wheel and some automobile tools were on the inside.
There was evidence that some of the whiskey was manufactured in Kentucky and that part of the liquor came from each of four wholesale liquor companies in Baltimore; that the automobile was owned by one Williard under a trade name. Various sheets of paper were found on person of defendant, on which were listed the names of certain people who live in High Point. There were also found certain other papers purporting to be bills of lading.
Separate warrants were issued against this defendant, his companion Shaffer, and one Williard, alleged to be the owner of the liquor. The jury returned the following verdict: "That the defendant O. M. Davis is guilty of the unlawful transportation of intoxicating liquors and not guilty as to possession." From judgment pronounced thereon this defendant appealed.
Walter Woodson, of Salisbury, and Walser & Wright, of High Point, for appellant.
Harry McMullan, Atty. Gen., and T. W. Bruton and R. H. Wettach Asst. Attys. Gen., for the State.
The brief of the defendant is not in compliance with Rule 28 of this Court and its arrangement is such that it is with difficulty that we identify the exceptions and assignments of error to which reference is made. The brief does not bring forward exception No. 1, which was addressed to the action of the court in consolidating the three cases for trial. These three defendants were charged with participating in the same offense as principals. The State relied upon substantially the same set of facts as against each. The consolidation was proper and simply tended to prevent a multiplicity of trials involving the same facts. State v. Combs, 200 N.C. 671, 158 S.E. 252.
The defendant in his brief seeks to present primarily two questions for decision: (1) Does the transportation by a truck driver of 203 cases of liquor upon which the Federal tax has been paid constitute a prima facie case of unlawful transportation? And (2) is there a fatal variance between the charge and the verdict?
The warrant in the instant case does not specify the statute violated, but charges sufficiently a violation of the criminal laws of North Carolina. State v Moschoures, 214 N.C. 321, 199 S.E. 92; State v. Lockey, 214 N.C. 525, 199 S.E. 715. Accordingly, it is well to examine the present law regulating the possession and transportation of intoxicating liquors in this State to determine whether defendant's acts were unlawful.
Under Ch. 1, Pub.Laws 1923, Section 2, known as the Turlington Act, it is unlawful to manufacture, sell, transport, import, export, deliver, furnish, purchase, or possess any intoxicating liquors, except in specified instances enumerated in the statute. This is still the law in North Carolina except to the extent that it may be modified or repealed by the Alcoholic Beverage Control Acts of 1935, Ch. 493 and Ch. 418, Pub.Laws 1935, and of 1937, Ch. 49, Pub.Laws 1937. It is necessary then to examine the 1937 Act to determine to what extent and under what conditions it is not unlawful to transport liquors in North Carolina.
By the express terms of the Alcoholic Beverage Control Statute, Chapter 49, Pub. Laws 1937, it becomes fully effective only in those counties where an election has been held and a majority of the voters voting in the election have expressed themselves in favor of the operation of liquor stores, and in those counties in which liquor stores are operated under the provisions of Chapters 418 and 493, Pub.Laws 1935. In certain respects, however, the Act is State-wide in its operation and effect. In the introductory section, the Act states that its purpose is to "Establish a system of control of the sale of certain alcoholic beverages in North Carolina, and to provide the administrative features of the same, in such a manner as to insure, as far as possible, the proper administration of the sale of certain alcoholic beverages under a uniform system throughout the State." Section 1.
In Section 10 thereof County Liquor Boards are vested with the authority to control the importation, sale, and distribution of liquors within their respective counties and to import, transport, receive, and sell liquors therein. Section 13 makes it unlawful for any person to possess any liquor upon which the taxes imposed by the United States or the State have not been paid. This section provides for the forfeiture of the liquor and any vehicle used in the transportation thereof. Possession without the tax stamp is made prima facie evidence of unlawful possession. In Section 14, it is provided that it shall not be unlawful for any person to transport a quantity of alcoholic beverages not in excess of one gallon from a county in North Carolina coming under the provisions of the Act to or through a county in North Carolina not coming under the provisions of the Act, subject to certain provisions therein specified. Section 15 makes the possession for sale or sale of illicit or County store liquor unlawful except when sold as provided by the Act by duly authorized liquor stores. Under the provisions of Section 22, it is unlawful for any person to purchase in, or to bring into, this State any alcoholic beverages from any source except from a County Store operated under the Act, except that a person may purchase legally outside this State and bring into the same for his own personal use not more than one gallon. It is provided in the Act that the transportation from a County Store, or from without the State, of not more than one gallon shall not be unlawful provided it is not transported for the purpose of sale and the seal or cap of the container has not been broken or opened. It is likewise provided that liquor being transported in the actual course of delivery to a County store is not unlawful. Section 25 expressly provides that the Turlington Act shall be in full force and effect in the counties in which County Liquor Control Stores are not established, and in Section 27 all laws and clauses of laws in conflict with the Act are repealed only to the extent such Acts may conflict therewith.
The expressed purpose looking to uniformity and the several provisions of the Act make it apparent that certain provisions of the 1937 Act are to be given State-wide effect. This is particularly true as to the transportation provisions with which the Turlington Act, Ch. 1, Pub. Laws 1923, conflicts only in respect to liquor being transported to Alcoholic Beverage Control Stores, and whiskey purchased from a County Store and being transported in a sealed container in an amount not to exceed one gallon for personal use, and as to the transportation of a like quantity brought into the State in sealed packages and upon which the taxes have been paid. Hence, it is still unlawful in this State for any person to possess or transport intoxicating liquors for any purpose other than those specified in the Act or in a quantity in excess of one gallon, unless such liquor is in actual course of delivery to a County Store. Therefore, Ch. 1, Pub.Laws 1923, insofar as it deals with the transportation within the State of intoxicating liquors is not inconsistent with the 1937 Act except in the indicated particulars and it is still in force. State v. Epps, 213 N.C. 709, 197 S.E. 580; State v. Lockey, 214 N.C. 525, 199 S.E. 715; State v. Langley, 209 N.C. 178, 183 S.E. 526. As the 203 cases of whiskey found in the defendant's possession were being transported in North Carolina and exceeded by far the one gallon limit permitted for personal use, evidence that the defendant was transporting the whiskey within the State was sufficient to take the case to the jury, as this act is the precise act expressly prohibited by the Turlington Act as well as...
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