State v. Denton

• Decision Date: 13 December 1913
• Citation: 80 S.E. 401,164 N.C. 530
• Parties: STATE v. DENTON.
• Court: North Carolina Supreme Court

80 S.E. 401

164 N.C. 530

STATE v. DENTON.

Supreme Court of North Carolina

December 13, 1913

Appeal from Superior Court, Edgecombe County; Long, Judge.

R. H Denton was convicted of having intoxicating liquors in his possession with intent to sell, and sentenced to twelve months on the roads, and he appeals. Affirmed.

Walker and Allen, JJ., dissenting in part.

Pub Acts 1913, c. 44, making it unlawful to have possession of liquor for sale, in force from and after April 1, 1913 ratified March 3d preceding, held not ex post facto when applied to liquor found in accused's possession April 17 1913.

F. S. Spruill, of Rocky Mount, and H. A. Gilliam and James M. Norfleet, both of Tarboro, for appellant.

Atty. Gen. Bickett and Asst. Atty. Gen. Calvert, for the State.

BROWN J.

Under the Search and Seizure Act of 1913 (chapter 44), a warrant was sworn out against the defendant charging him with having in his possession, for the purpose of sale, 29 barrels of whisky, 71 one-half pints, and 38 quarts of corn whisky. The action was originally tried in the recorder's court of Edgecombe 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 parts of the livery and feed stables of the defendant, a large quantity of whisky 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 whisky was shipped into the state of North Carolina and delivered to the defendant prior to April 1, 1913. The whisky was found in defendant's possession April 17, 1913. The Search and Seizure Act of 1913, c. 44, contains these provisions:

"Sec. 9. That this act shall not apply to any act committed prior to its ratification.

Sec. 10. That this act shall be in force from and after the first day of April, 1913." Ratified March 3, 1913.

1. The first point pressed by the learned counsel for the defendant is that the recorder's court had no jurisdiction, and that the defendant should have been indicted in the superior court and tried upon such bill.

We are of opinion that this question has been settled at least by a majority of this court by repeated decisions adverse to such contention. State v. Lytle, 138 N.C. 738, 51 S.E. 66; State v. Dunlap, 159 N.C. 491, 74 S.E. 626.

2. It is assigned as error that the court instructed the jury: "Upon the foregoing facts the court stated that he would hold that the search and seizure law of 1913 applied to this case and instructed the jury that the possession of liquor in the quantity as testified to constituted a prima facie case, and that 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...