State v. Lee

• Citation: 164 N.C. 633,80 S.E. 405
• Parties: STATE v. LEE.
• Decision Date: 13 December 1913
• Court: United States State Supreme Court of North Carolina

80 S.E. 405

164 N.C. 633

STATE

v.LEE.

Supreme Court of North Carolina.

Dec. 13, 1913.

1. Intoxicating Liquors (§ 249*)—Searcu Warrant—Amendment.

The judge of the superior court had authority to permit a warrant in a search and seizure proceeding to be amended by adding after the words "spirituous liquors" the words "for the purpose of sale."

[Ed. Note—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 376-385; Dec. Dig. § 249.*]

2. Intoxicating Liquors (§ 20*)—Search and Seizure—Constitutionality of Law.

The Search and Seizure Law (Laws 1913, c. 44), making the possession of more than one gallon of spirituous liquors prima facie evidence that it is illegally kept for sale, is constitutional.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. § 26; Dec. Dig. § 20.*]

3. Intoxicating Liquors (§ 236*)—Search and Seizure—"Possession."

Under the Search and Seizure Law (Laws 1913, e. 44), making the possession of more than one gallon of spirituous liquor prima facie evidence that it is illegally kept for sale, the possession need not be an actual possession; and, where defendant gave a public drayman a check for a trunk, and instructed him to get it, and take it to a certain place, and paid him therefor, and it was seized while in the drayman's possession, and found to contain more than one gallon of whisky, there was such a "possession" by defendant as to make out a prima facie case against him.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.*

For other definitions, see Words and Phrases, vol. 6, pp. 5464-5470; vol. 8, pp. 7757, 7758.]

Appeal from Superior Court, Washington County; Connor, Judge.

Arthur Lee was convicted under the Search and Seizure Law for having spirituous liquors in his possession for the purpose of sale, and he appeals. No error.

The defendant was tried and convicted under the Search and Seizure Law for having spirituous liquors in his possession for the purpose of sale on a warrant issued by a recorder. When the case was called for trial in the superior court, after the jury had been impaneled, the solicitor for the state moved that the warrant be amended by adding after the words "spirituous liquors" the words "for the purpose of sale." The motion was allowed, and the defendant excepted.

The evidence for the state tended to show that on April 26, 1913, on the arrival at Plymouth of a train from Norfolk, Va., there was received at the Norfolk Southern Railroad station a trunk, afterwards found to contain 40 half pint bottles and 4 gallon jugs containing whisky. On the morning of its arrival the defendant gave a public drayman a check for the trunk, and instructed him to get the trunk, and take it to the home of his mother, and paid him for the service to be performed. The drayman went to the station, and delivered the check, and received the trunk. The trunk was seized by officers while still in possession of the drayman. When the officers went to the store of the defendant, he saw them coming, and walked hurriedly away.

The defendant moved for judgment of nonsuit, and by other exceptions presents the contention that the evidence does not show that the defendant was in possession of the liquor.

His honor charged the jury, among other things: "That, if the jury are satisfied by the evidence beyond a reasonable doubt that the trunk in evidence had been shipped to the defendant, and that a check had been sent to or received by him, which, upon surrender to the railroad company, entitled him to the possession of the trunk and its contents; that the defendant had delivered the check to Ballard, a drayman, with instructions from defendant to surrender the check, and take the trunk to the home of Aggie Lee; that Ballard received the trunk, and took it into his possession as agent for the defendant; and that, while the trunk was in the actual possession of Ballard, it was under the control of and subject to the orders of the defendant—then the trunk was in the possession of the defendant during the time that Ballard had it on his dray as agent for defendant, if the jury shall find from the evidence beyond a reasonable doubt that Ballard was the agent of the defendant."

Ward & Grimes, of Washington, N. C, and P. H. Bell, of Plymouth, for appellant.

Attorney General Bickett and T. H. Calvert, Asst. Atty. Gen., for the State.

ALLEN, J. [1] The authority of his honor to permit an amendment of the warrant is well settled. State v. Vaughan, 91 N. C. 532; State v. Telfair, 130 N. C. 645, 40 S. E. 976.

The other exception relied on by the defendant involves a construction of the language in the Search and Seizure Law (chapter 44, Laws 1913), "to have or keep in his, their or its possession, for the purpose of sale, any spirituous, vinous or malt liquors."

The contention of the defendant is that by "possession" is meant an actual possession, and that, as the whisky did not reach the defendant, and was seized in the hands of his agent, he is not guilty, and the statutory presumption from the possession of more than one gallon cannot arise.

The Search and...