State v. Lockey, 507.
| Decision Date | 30 November 1938 |
| Docket Number | No. 507.,507. |
| Citation | 199 S.E. 715,214 N.C. 525 |
| Parties | STATE. v. LOCKEY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklin-burg County; Frank M. Armstrong, Judge.
Mrs. C. B. Lockey was convicted of possessing intoxicating liquor for the purpose of sale, and she appeals.
Reversed.
A. A. Tarlton, of Charlotte, for appellant.
Harry McMullan Atty. Gen., and T. W. Bruton and R. H. Wettach, Asst. Attys. Gen, for the State.
The defendant was tried and convicted on a warrant charging the possession of intoxicating liquor for the purpose of sale "in violation of the Alcoholic Beverage Control Act, 1937, Public Laws of N. C." Pub.Laws 1937, c. 49. Motions in the Court below for judgment of nonsuit were denied. N.C.Code 1935 (Michie), § 4643. An appeal was taken from the judgment upon a verdict of guilty by the jury. We think under the charge in the warrant the evidence was insufficient to be submitted to the jury and the motions for nonsuit should have been sustained.
The defendant was charged with a violation of Section 3411(79), 1937 Supp. to N.C.Code of 1935 (Michie); Pub.Laws 1937, c. 49, § 15. Although the Turlington Act has not been repealed in its entirety (State v. Epps, 213 N.C. 709, 197 S.E. 580), and the rule that possession of intoxicating liquor is prima facie evidence of possession for purpose of sale is a statutory rule growing out of the Turlington Act (State v. Dowell, 195 N.C. 523, 143 S. E. 133), this prima facie rule was not incorporated in the 1937 Alcoholic Beverage Control Act. Nor are the provisions of C. S. § 3379 and the recent cases arising thereunder (State v. Langley, 209 N.C. 178, 183 S.E. 526; State v. Ellis, 210 N.C. 166, 185 S.E. 663, and State v. Tate, 210 N.C. 168, 185 S.E. 665) dealing with the prima facie character of possession of intoxicating liquor pertinent to the instant case. This is not such a case as State v. Moschoures, 214 N.C. 321, 199 S.E. 92; there unlawful possession for sale was charged generally and accordingly the State was not held to strict proof undera particular section. In the instant case the offense charged was the violation of a specific statute and in such a case this Court is powerless to uphold an erroneous conviction under that statute by substituting another statute requiring proof less strong. State v. Wilkerson, 164 N.C. 431, 432, 444, 79 S.E. 888; State v. Stinnett, 203 N.C. 829, 832, 167 S.E. 63; State v. Ferguson, 191 N.C. 668, 670, 132 S.E. 664; State v. George, 188...
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State v. Dixon
... ... 85, 147 S.E. 736 (creation ... of sanitary districts) ... Nor was ... the decision of this Court in State v. Lockey, 198 N.C. 551, ... 152 S.E. 693, contrary to what is here said. In that case the ... apparent conflict between two State-wide Acts--the Revenue ... ...
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State v. Davis
...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 203 cases of whiskey found in the defendant's possession were being transp......
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State v. Wilson
...seized was competent. State v. Peterson, 226 N.C. 255, 37 S.E.2d 591; State v. McNeill, 225 N.C. 560, 35 S.E.2d 629, and State v. Lockey, 214 N.C. 525, 199 S.E. 715, on by defendant, are not in point. In each of those cases the defendant was prosecuted under G.S. s 18-50. This section of th......
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State v. Hill
...ABC Act, makes it unlawful to possess such illicit liquor for the purpose of sale. In applying these sections we said in State v. Lockey, 214 N.C. 525, 199 S.E. 715, that in a prosecution for the sale of illicit liquor under G.S. § 18-50, the prima facie rule of evidence created by G.S. § 1......