State v. Mcintyre

• Decision Date: 07 November 1905
• Citation: 139 N.C. 599,52 S.E. 63
• Court: North Carolina Supreme Court
• Parties: STATE. v. McINTYRE.

52 S.E. 63

139 N.C. 599

STATE.

v.McINTYRE.

Supreme Court of North Carolina.

Nov. 7, 1905.

1. Intoxicating Liquors — Offenses—Possession OF Liquor.

Laws 1903, p. 144, c. 125, and Laws 1905, p. 987, c. 800, which declare it unlawful to rectify, manufacture, sell, or otherwise dispose of intoxicating liquors, establish minute regulations for the sale of whisky by druggists for medicinal purposes, and impose specific duties on various officers, do not make it an indictable offense to have in one's possession whisky with intent to sell the same.

2. Same.

Under Laws 1905, p. 991, c. 800, § 20, declaring it unlawful for any person to have in his possession more than two gallons of spirituous liquors at any one time, and providing that the possession of a greater quantity shall be prima facie evidence that such person is engaged in the illegal sale of liquor, the possession of more than the specified quantity of liquor is not of itself a distinct and substantive offense, but is merely an evidential fact in a prosecution for an illegal sale of liquor under other sections of the act.

[Ed. Note.—For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, §§ 150, 251.]

Appeal from Superior Court, Cumberland County; Moore, Judge.

William McIntyre was convicted of a violation of the liquor law, and appeals. Judgment arrested.

Thos. H. Sutton and N. A. Sinclair, for appellant.

The Attorney General, for the State.

HOKE, J. The defendant was indicted, under the law regulating the sale of intoxicating liquors in Cumberland county, for having in his possession and under his control more than two gallons of whisky at one time with intent to sell the same. The statutes under which the defendant was convicted (Laws 1903, p. 144, c. 125, and Laws 1905, p. 987, c. 800) contain no such offense as that specifically charged in the bill of indictment They make it unlawful to rectify, manufacture, sell, or otherwise dispose of, for gain, intoxicating liquors, etc., establish minute regulations for the sale of whisky by druggists for medicinal purposes, and impose specific duties on various officers in enforcement of the acts, but nowhere, so far as we can discover, make it indictable to have in possession whisky with intent to sell.

It is argued that under section 20, c. 800, p. 991, Laws 1905, "the having in possession more than two gallons of spirituous liquors" is unlawful, and, rejecting the concluding words of the charge, "with intent to sell, " as surplusage, the indictment would contain a distinct and substantive offense, made criminal by the law. We do not think, however, that this was the intent of the Legislature, nor is it a correct interpretation of the section. The statute had already clearly defined the acts, made criminal so far as individuals were concerned, imposing specific and severe punishment for its violation and is here dealing with the administrative features of the law. The entire section reads: "That it shall be unlawful for any person to have in his or her possession, or under his or her control, more than two gallons of spirituous liquors...