State v. Dowell

• Decision Date: 02 May 1928
• Docket Number: 339.
• Citation: 143 S.E. 133,195 N.C. 523
• Parties: STATE v. DOWELL.
• Court: North Carolina Supreme Court

143 S.E. 133

195 N.C. 523

STATE v. DOWELL.

No. 339.

Supreme Court of North Carolina

May 2, 1928

Appeal from Superior Court, Forsyth County; Stack, Judge.

Raymond Dowell was convicted of unlawful possession of liquor, and he appeals. No error.

The bill of indictment contained 5 counts and charged defendant (1) unlawfully did sell, barter, furnish, and deliver intoxicating liquor; (2) unlawfully did transport, import and export intoxicating liquor; (3) unlawfully did purchase intoxicating liquor; (4) unlawfully did possess intoxicating liquor; (5) unlawfully did have in possession intoxicating liquor for the purpose of being sold, bartered, exchanged given away, furnished, and otherwise disposed of in violation of the provision of the act of the General Assembly of North Carolina, enacted at its session 1923, and ratified March 1 A. D. 1923, being entitled "An act to make the state law conform to the national law in relation to intoxicating liquors."

The testimony was to the effect that:

Guy Scott, a deputy sheriff, in consequence of information received in regard to defendant, procured a search warrant and went with E. J. Conrad and L. Newsom to defendant's home, about five miles south of Winston-Salem, on the Lexington road. It was in the middle of the afternoon. "When I was getting out of the car I heard some glass rattling in the house. I ran in the house, and when I went in the kitchen door I met Raymond Dowell's wife coming out of the door. I went in through the kitchen, and into the room, and in that room there was an old-like hearth, and liquor was about half an inch deep in this hearth, and a gallon jug and a half gallon fruit jar had been broken, lying there, and I looked out and saw Dowell going through the field and Mr. Conrad after him. The hearth where the liquor was on it was in the bedroom. There were three rooms in this house. This was the defendant's dwelling house. He and his family lived there, or he said he did."

L Newsom corroborated Guy Scott in regard to the liquor and testified further:

"As we went in the kitchen door Raymond Dowell jumped out of the bedroom window, which was the middle room, and which was the room the whisky was in. Defendant ran right down through the field, and Mr. Conrad ran after him and caught him. Mr. Conrad is an officer. *** The floor was wet all along the floor around the hearth and on the hearth, and a plank torn up in the floor, and there were three empty jugs under the floor. That was the same room in which we found the liquor on the hearth. Defendant jumped out of the window of that room and ran. There was one bed in that room."

The defendant introduced no evidence. The verdict of the jury was:

We "find the defendant guilty of unlawful possession of intoxicating liquors and possession of intoxicating liquors for the purpose of sale."

Brogden, J., dissenting.

John D. Slawter, of Winston-Salem, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

CLARKSON J.

The defendant moved to dismiss each and every count in the bill of indictment. The court below allowed the motion as to the first, second, and third counts, but declined to grant the motion for judgment as of nonsuit or dismiss the action as to the fourth and fifth counts in the bill of indictment. C. S. § 4643. We think the court below correct.

Chapter 1, § 1, laws of 1923 (known as the Turlington or Conformity Act), in part, is as follows:

"The word 'liquor' or the phrase 'intoxicating liquor' shall be construed to include alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquors, liquids, and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one-half of one per centum or more of alcohol by volume, which are fit for use for beverage purposes," etc. 3 C. S. § 3411(a).

Section 2:

"No person shall manufacture, sell, barter, transport, import, export, deliver, furnish, purchase, or possess any intoxicating liquor except as authorized in this act; and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented. Liquor for non-beverage purposes and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, furnished, and possessed, but only as provided by title II of 'The Volstead Act,' act of Congress enacted October twenty-eighth, one thousand nine hundred and nineteen, an act supplemental to the National Prohibition Act, 'H. R. 7294,' an act of Congress approved November twenty-third, one thousand nine hundred and twenty-one." 3 C. S. § 3411(b).

Section 10 is as follows:

"From and after the ratification of this act the possession of liquor by any person not legally permitted under this act to possess liquor shall be 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. 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." 3 C. S. § 3411(j).

The court below, after defining what was actual and constructive possession (State v. Meyers, 190 N.C. 239, 129 S.E. 600), charged the jury, in part, as follows:

"The court instructs you that the burden of proof is upon the state to satisfy you beyond a reasonable doubt that he had the liquor in his possession, either actual or constructive, and the court further instructs you that if he did have it in his possession that it would be unlawful, unless he had it in his home for his own use, for his own personal use or the use of his bona fide friends or guests. The possession of liquor anywhere in the home or out of the home is prima facie evidence that he is keeping it for the purpose of violating the law. It is prima facie evidence that he is keeping it in violation of the law, and what is meant by that is, that it is artificial evidence created by the law from certain facts and sufficient to carry the case to the jury, and upon which the jury may act either way. The defendant has not gone upon the stand and testified, but you cannot use that to his prejudice. The court instructs you that if he had this liquor in his home for the purpose of selling it, or for the purpose of giving it away, except as mentioned in the statute, or for the purpose of furnishing it to somebody else, except as mentioned in the statute, he would be guilty, but if he had it in his home for his own bona fide use, his personal use or the use of his bona fide guests, then he would not be guilty [and the court instructs you as to whether or not he had it for that purpose is a matter that is within his own knowledge alone, and therefore the burden is upon him to show that he had it for his own consumption or for the use of his bona fide guests]."

The only part of the charge to which exception and assignment of error was made was the latter part of the charge above set forth in brackets.

The charge of the court was confined to the fourth and fifth counts which we are now considering, the counts under which defendant was convicted: (1) Unlawfully did possess intoxicating liquors; (2) unlawfully did have in possession intoxicating liquor for the purpose of being sold.

(1) Under the above statutes, it is unlawful for any person to possess liquor (except as authorized in the act not material to be considered) and except "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." The possession of liquor in the private dwelling, for any other purpose than as above stated in the exception, is unlawful. (2) "The possession of liquor by any person not legally permitted under this act to possess liquor shall be 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." This prima facie evidence for sale, etc., applies to the private dwelling or elsewhere. State v. Mull, 193 N.C. 668, 137 S.E. 866.

We have heretofore construed the act applicable to facts as they were presented in this court in the particular case. In State v. McAllister, 187 N.C. 403, 121 S.E. 739, it was held unlawful to possess liquor, in the language of the statute when not "in one's private dwelling while the same is occupied and used by him as his dwelling only, *** 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." State v. Meyers, 190 N.C. 239, 129 S.E. 600; State v. Sigmon, 190 N.C. 684, 130 S.E. 854; State v. Baldwin, 193 N.C. 566, 137 S.E. 590. In State v. Hammond, 188 N.C. 602, 125 S.E. 402, it was held that the statute did not prohibit the receiving of liquor.

In State v. Knight, 188 N.C. 630, 125 S.E. 406 evidence tending to show that the defendant had intoxicating liquor in his possession before the passage of the act is not a defense under its provisions for the defendant's possession a year thereafter upon an indictment under the act of possessing liquor. The liquor in controversy was not in his private...