Opinion
(Filed 22 December, 1917.)
1. Intoxicating Liquors — Possession — Statutes — Prima Facie Case — Presumptions — Instructions — Burden of Proof.
Upon a trial for violating the prohibition laws of the State, when evidence is conflicting as to whether the defendant had in his possession at any one time a gallon or more of spirituous liquor, which is made prima facie evidence of its violation by chapter 44, Laws of 1913, the presumption of innocence remains with the defendant throughout, with the burden on the State to show the fact of the possession or of the forbidden purpose; and a charge by the court that the defendant must prove to the satisfaction of the jury that he did not have it for sale, if he had it in his possession, is reversible error.
2. Instructions — Conflicting Charge — Intoxicating Liquors — Burden of Proof — Appeal and Error.
A charge of the court to the jury erroneously requiring the defendant to show that his possession of a gallon or more of spirituous liquor was not for forbidden purposes is not cured by an instruction elsewhere correctly given, and the conflicting instructions constitutes reversible error.
Indictment for unlawful retailing spirituous liquors, tried (749) before Justice, J., at August Term 1917 of CALDWELL.
There were counts in the bill for having in possession certain spirituous and vinous liquors in quantities greater than three gallons for the purposes of sale, contrary to law, and for receiving liquors, etc., in quantities greater than one quart, etc.
There was verdict of guilty, and defendant, having duly excepted, appealed.
Attorney-General Manning and Assistant Attorney-General Sykes for the State.
W. C. Newland and M. N. Harshaw for defendant.
CLARK, C. J., dissenting.
Chapter 44, Laws 1913, provides that it shall be unlawful for any person other than druggists or medical depositories, duly licensed, to have in their possession for the purposes of sale spirituous, vinous or malt liquors, and makes the possession of one gallon of spirituous liquors at any one time prima facie evidence of a violation of this section of the statute.
On the record, there were facts in evidence permitting the inference that defendant had in possession at one time more than one gallon of spirituous liquors, and in reference thereto the court charged the jury as follows: "If the defendant did not have it in his possession, that ends it. He was not guilty; but if he had it in his possession when the officer went up there, then the law says that constitutes a prima facie case, that he had it in his possession for sale, and it devolves upon the defendant to prove to the satisfaction of the jury that he did not have it for sale."
To that part of the charge which says "It devolves upon the defendant to prove to the satisfaction of the jury that he did not have it for sale," the defendant excepted.
We think the exception is well taken. The power of the General Assembly to enact legislation of this character is fully established with us. S. v. Barrett, 138 N.C. 630.
(750) In construing this and other statutes of like kind, however, our Court has often held that while the guilty purpose may be inferred from the fact of possession established, and the court should instruct the jury to consider the evidence in view of the artificial weight given to such possession, the presumption of innocence is also present, and if on the entire testimony there is reasonable doubt of the defendant's guilt, either as to fact of the possession or of the forbidden purpose, the defendant should be acquitted. S. v. Wilbourne, 87 N.C. 529; S. v. Woodley, 47 N.C. 276.
His Honor in the closing portion of his charge gave recognition to this position, but not sufficiently so to correct the error indicated, which appears in the body of the charge more than once, and presents a case on conflict of instructions which entitles defendant to a new trial.
In a case at the present term (Vanderbilt v. Chapman), Associate Justice Allen quotes with approval from Horton v. R. R., 162 N.C. 455, as follows: "In any view of the charge of the court, there are conflicting instructions on material points and, under such circumstances, this Court should direct another trial. William v. Haid, 118 N.C. 481."
The present case is further controlled by our recent decision of S. v. Wilkerson, 164 N.C. 432-36-38. And under the principles of that decision and the others cited, the defendant must be awarded a new trial.
While we fully recognize that our prohibition policy as expressed in the valid statutes of the State should be enforced, we are also well assured that the rights and liberties of an independent and well-ordered citizenship are of supremest importance to our social and political life, and that the safeguards established for their preservation and protection should at all times and under all circumstances be jealously maintained.
New trial.