State v. Wilkerson
| Decision Date | 05 November 1913 |
| Parties | STATE v. WILKERSON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Vance County; Cline, Judge.
Zip Wilkerson was convicted of an offense, and he appeals. Reversed.
On trial for having possession of intoxicating liquor for the purpose of sale, evidence that accused purchased it in another state as agent for other persons held to make questions for the jury as to his intent and as to whether the transaction was a sale.
The defendant was arrested upon a warrant issued by the recorder of Vance county and based upon the following affidavit of M N. Parrish:
He was tried before the recorder, convicted and appealed to the superior court. The evidence at his trial in the latter court tended to show that defendant had been employed by 10 men near Henderson in Vance county, who were customers at his store, to go to Virginia and buy for them 10 gallons of whisky, one gallon for each man. He agreed to do so if they would pay him $2.50 for the service. Each of them gave him $2 to pay for the whisky and 25 cents for buying and hauling it. He hauled for the public and kept a horse and buggy and also a wagon for the purpose. He went to Virginia in his buggy bought the liquor there with the money, and was hauling it back for delivery to them when, on the way to his home, he was arrested by the officer with the whisky in his possession. He bought a gallon for himself and had in his wagon, at the time of the arrest, 11 gallons of corn liquor in 3 kegs and 2 bottles. The gallon which he bought for himself was for his personal use and not for sale, nor did he know that any of the other persons for whom he bought the liquor intended to sell it or any of it. He received only 25 cents from each man for buying and hauling it.
Upon this evidence, which in the main was the testimony of the defendant himself, at least the material parts of it, the court charged the jury that, if they found, beyond a reasonable doubt, the defendant had in his possession more than one gallon of spirituous liquor at the time of his arrest, and he was not a druggist and had no medical depository, the law made it prima facie evidence of the violation of the act passed by the General Assembly in 1913 known as the "Search and Seizure Law" (that is to say, if those facts had been proven to them beyond a reasonable doubt, that statute puts upon the defendant the duty of going forward and satisfying the jury by the greater weight of the evidence that in fact he did not have the liquor in his possession for the purpose of sale), and further that if he bought the liquor as above set forth, and it was taken while in his possession before the bulk was broken or there had been any distribution among the men for whom he bought it, then, as matter of law, he was guilty of violating the act of March 3, 1913, known as the "Search and Seizure Law," and they should convict, but, if they had a reasonable doubt about it, they should acquit. The jury returned a verdict of guilty. Judgment was entered thereon and defendant appealed.
Henry T. Powell and T. M. Pittman, both of Henderson, for appellant.
Attorney General Bickett and T. H. Calvert, of Raleigh, for the State.
WALKER, J. (after stating the facts as above).
The defendant was charged with a violation of the act of 1913, it being chapter 44, entitled "An act to secure the enforcement of the laws against the sale and manufacture of intoxicating liquors," ratified March 3, 1913. The act makes it unlawful for any person, firm, association, or corporation, other than druggists or medical depositories, duly licensed, "to have or keep in his, their or its possession for the purpose of sale, any spirituous, vinous or malt liquors," and makes proof of any one of certain facts prima facie evidence of the violation of the act, and among others it is provided that "the possession of more than one gallon of spirituous liquors at any one time, whether in one or more places," shall constitute such prima facie evidence of the fact that it is kept for sale in violation of the act. Having clearly before us the nature of the particular charge against the defendant, the law alleged to have been violated, and the proof offered in support of the charge, we are prepared now to consider the objection urged by the defendant's counsel to the charge of the court. The jury were instructed that the fact of his having in his possession more than one gallon of the liquor made out a prima facie case against the defendant. If the court had stopped here and not qualified this instruction, it would have been correct, but it did not do so but went beyond the terms of the statute and the law when it further charged that it then was the duty of the defendant "to go forward and satisfy the jury, by the greater weight of the evidence, that he did not have the liquor in his possession for the purpose of sale." In this further instruction we think there was error.
The defendant, as we have shown, is charged, under the act of 1913, with unlawfully having spirituous liquor in his possession for the purpose of selling it, and nothing else, and proof of the possession of more than one gallon of such liquor is made prima facie evidence of the unlawful act, which is that it is held by him for the purpose of sale, an act forbidden by the general law. It is not made unlawful for a person to have more than one gallon of spirituous liquor in his possession, but it is criminal to have possession of that quantity for the purpose of sale; and while the bare possession of so much may, in itself and as a fact, be innocent, it is yet made prima facie evidence of guilt under the statute, as in State v. Barrett, 138 N.C. 630, 50 S.E. 506, 1 L. R. A. (N. S.) 626. But it is only evidence, and, while it has the added force or weight of being prima facie, the latter means no more than that it is sufficient for the jury to convict upon it alone and unsupported, if no other proof is offered, but upon the whole evidence, whether consisting of the mere fact of possession or of additional facts, the jury are not bound to convict but simply may do so if they find beyond a reasonable doubt, or are fully satisfied, that the defendant is guilty. Prima facie means at first; on the first appearance; on the face of it; so far as can be judged by the first disclosure presumably. These are the definitions of the law, as we learn from the books. Black's Dict. (1st Ed.) 539. The jury are no more required to convict upon a prima facie case than they are to acquit because of the presumption of innocence. They must judge themselves as to the force of the testimony and its sufficiency to produce in their minds a conviction of guilt. In civil cases, the rule is the same (with a difference in the quantum), as prima facie evidence only carries the case to the jury and does not entitle the party in whose favor it has been offered to a verdict as matter of right.
Referring to this rule, as applied to civil cases, and the presumption, or prima facie case, arising under the maxim res ipsa loquitur, which presents one of the strongest of such cases, the Supreme Court of the United States has recently said: Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815. The court cites with approval the numerous cases decided by this court on the same subject. Womble v. Grocery Co., 135 N.C. 474, 47 S.E. 493; Stewart v. Carpet Co., 138 N.C. 60, 50 S.E. 562; Lyles v. Carbonating Co., 140 N.C. 25, 52 S.E. 233; Ross v. Cotton Mills, 140 N.C. 115, 52 S.E. 121, 1 L. R. A. (N. S.) 298; Board of Education v. Makely, 139 N.C. 31, 51 S.E. 784; Overcash v. Electric Co., 144 N.C. 572, 57 S.E. 377, 12 Ann. Cas. 1040; Winslow v. Hardwood Co., 147 N.C. 275, 60 S.E. 1130.
Justice Hoke says for the court in Furniture Co. v. Express Co., 144 N.C. 644, 57 S.E. 460: "It may be well to note here that, in using the terms 'prima facie' and 'presumptive,' the terms do not import that the burden of the issue is changed, but that on the facts indicated the plaintiff is entitled to have his cause submitted to the jury under a proper charge as to its existence or nonexistence and the effect of any presumption which may attach, as indicated in the cases" --citing several of the cases to which we have already referred.
It may therefore be taken as settled in this court, at least, and we believe the same may be said of most, if not all, of the courts, that prima facie or presumptive evidence does not of itself establish the fact or facts upon which the verdict or judgment must rest, nor does it shift the burden of the issue,...
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