State v. Foster

• Decision Date: 21 March 1923
• Docket Number: 242.
• Citation: 116 S.E. 561,185 N.C. 674
• Parties: STATE v. FOSTER.
• Court: North Carolina Supreme Court

116 S.E. 561

185 N.C. 674

STATE v. FOSTER.

No. 242.

Supreme Court of North Carolina

March 21, 1923

Appeal from Superior Court, Franklin County; Cranmer, Judge.

Eugene Foster was convicted for violation of the liquor laws, and he appeals. No error.

The defendant was convicted of having liquor in his possession for the purpose of sale and also for receiving more than one quart at a time and appealed. The defendant's house was searched by officers with a search warrant. They found a quart of whisky in a trunk in which were some woman's clothes; a gallon of whisky in some cotton; one gallon more in a shed; two empty five-gallon jugs with the smell of whisky; and a quart pot and a funnel. This evidence was introduced as tending to show that the defendant had not only received more than the legal quantity, but had it in possession for the purpose of sale. He denied that the whisky was his or that he had had anything to do with making or selling it. There was evidence of his good character and also of his bad character. Verdict of guilty, and judgment and appeal by defendant.

Repeals by implication are not favored, and a statute which repeals all acts and parts of acts in conflict therewith will be construed as not repealing other acts on the same subject unless irreconcilably repugnant with the new act, or unless the new law is evidently intended to supersede all prior acts on the same subject and to comprise in itself a complete system of legislation.

W. H. & Thomas W. Ruffin, of Louisburg, for appellant.

James S. Manning, Atty. Gen., Frank Nash, Asst. Atty. Gen., and Heriot Clarkson, of Charlotte, for the State.

CLARK C.J.

The first exception was to the question and answer: "Is the defendant married?" The witness said he "was not--that a woman stayed with him." The question, if it had been merely irrelevant, was not ground of error, but it was competent as tending to explain why the quart of whisky was in the trunk in which there were a woman's clothes. The addition made in the reply was not called out by the question, for the witness could have simply answered "Yes" or "No." The defendant did not ask to have it struck out.

The second exception was to this part of the charge of the court:

"It does not require, gentlemen of the jury, any more evidence or any less evidence, or any different kind of evidence, to convict or acquit one charged with the violation of the prohibition law, than it does to convict or acquit one charged with the violation of any of the criminal statutes of the state, and the jury that requires more or less or any different kind of evidence is not an honest jury."

We cannot see that this in any wise could prejudice the defendant. The court was simply instructing the jury, in his own way, against permitting any prejudice arising out of the enforcement of the prohibition law to affect them in considering the case. It was as much in behalf of the defendant as in behalf of the state.

The point chiefly pressed on the appeal was that the defendant was indicted for having 2 1/2 gallons of whisky in his possession for purposes of sale and receiving more than one quart of liquor, to wit, five gallons malt liquor, both about December 24, 1922, and that while the appeal was pending the Legislature passed "An act to make the state law conform to the national law in relation to intoxicating liquors," known as the "Turlington Act" and that section 10 of that act provides:

"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 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 his bona fide guests when entertained by him therein."

And section 28 provides:

"All laws in conflict with this act are hereby repealed, but nothing in this act shall operate to repeal any of the local acts of the General Assembly of North Carolina prohibiting the manufacture or sale or other disposition of any liquor mentioned in this act, or any laws for the enforcement of the same but all such acts shall continue in full force and effect and in concurrence herewith. An indictment for prosecution may be had either under this act or under any local act relating to the same subject."

Section 29 provides:

"If any provision of this act shall be held invalid it shall not be construed to invalidate other provisions of this act."

This act was ratified March 1, 1923, and section 30 provides that it shall be in force from its ratification. There was a general verdict of guilty.

The defendant filed a certificate that subsequent to the passage of the act the Senate passed an amendment to the same excepting all pending indictments, prosecutions, and cases from the provisions of the act, but that the House did not concur in the amendment and failed to pass the same, and the defendant's counsel insisted that the failure to pass this amendment was a declaration by the House that all pending indictments and prosecutions were based upon laws in conflict with the provisions of this act, and hence that all pending indictments should be quashed.

It is well said (25 R. C. L. p. 912):

"The common formula in a repealing clause that 'all and parts of acts in conflict herewith are hereby repealed' implies very strongly that other acts on the same subject are not

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