Opinion
Filed 10 December, 1958.
1. Intoxicating Liquor 5 — The evidence disclosed that defendant was in possession of five pints of taxpaid whisky in a building used by him as a combination store and dwelling, and that the whisky was found in the room used as a bedroom, with the seal of one of the bottles broken, but it was stipulated by defendant's counsel that defendant had the whisky in his store. Held: The evidence is sufficient to support the charge of unlawful possession, and defendant's motion to nonsuit was properly denied. G.S. 18-11.
2. Constitutional Law 10 — The enactment of law is the function of the General Assembly, and the courts must construe a statute as written.
APPEAL by defendant from Sharp, S.J., April 14, 1958 Criminal Term of GUILFORD.
Attorney General Seawell and Assistant Attorney General Love, for the State.
J. Owen Lindley and Stedman Hines for defendant, appellant.
PARKER, J., not sitting.
HIGGINS, J., concurring.
Defendant was indicted and tried in the Municipal-County Court of Guilford on a warrant charging (1) unlawful possession of four and one-half pints of taxpaid whisky, and (2) possession of the whisky for sale. He was there found guilty on each count, and from a judgment imposing a prison sentence he appealed to the Superior Court. The jury in the Superior Court returned a verdict of guilty of illegal possession of taxpaid whisky and not guilty on the count charging possession for the purpose of sale.
The facts with respect to the possession are not in controversy. Guilford County has not elected to come under the provisions of Article 3, c. 18, of the General Statutes. Liquor control stores have been established in Greensboro pursuant to provisions of c. 394, S.L. 1951. Defendant occupies a building called Oak Tree Grocery. The building, on Church Street Extension, is about one-quarter of a mile beyond the corporate limits of Greensboro. The building, formerly a filling station, is about twenty by thirty feet. The front portion is used by defendant as a store. There are two rooms in the rear which open into the store; one used as a storeroom, the other as defendant's bedroom. On the date named in the warrant defendant purchased five pints of whisky from a control store in Greensboro. He carried the whisky to the Oak Tree Grocery and put all five pints on a table in the room used by him as a bedroom. He broke the seal on one of the bottles and took a drink. Officers armed with a search warrant went to the store and on entering saw the whisky as described.
The court imposed a prison sentence on the jury's verdict of guilty, and defendant appealed.
Counsel for defendant, presumably in deference to the decisions, S. v. Hardy, 209 N.C. 83, 182 S.E. 831, S. v. Lowe, 209 N.C. 846, 183 S.E. 749, and S. v. Carpenter, 215 N.C. 635, 3 S.E.2d 34, which construe the statute (G.S. 18-11) defining a dwelling where whisky may be lawfully possessed, said: "Your Honor, we will stipulate that is the whiskey he had in his store."
Defendant, by motion to nonsuit and exceptions to the charge, presents this question: Was possession of taxpaid whisky in his store when not possessed for sale illegal? Unless we overrule a consistent line of decisions, the answer must be in the affirmative. S. v. Shinn, 238 N.C. 535, 78 S.E.2d 388; S. v. Fuqua, 234 N.C. 168, 66 S.E.2d 667; S. v. Barnhardt, 230 N.C. 223, 52 S.E.2d 904; S. v. Carpenter, supra; S. v. Hardy, supra; S. v. Lowe, supra; S. v. Briscoe, 194 N.C. 582, 140 S.E. 212; S. v. Pierce, 192 N.C. 766, 136 S.E. 121; S. v. Knight, 188 N.C. 630, 125 S.E. 406; S. v. McAllister, 187 N.C. 400, 121 S.E. 739.
The cases relied on by defendant, S. v. Ritchie, 243 N.C. 182, 90 S.E.2d 301; S. v. Hill, 236 N.C. 704, 73 S.E.2d 894; S. v. Brady, 236 N.C. 295, 72 S.E.2d 675; S. v. Suddreth, 223 N.C. 610, 27 S.E.2d 623, determine the legality of possession in one's residence. They hold that such possession is not per se illegal. They do not declare that storage in a place other than a residence is legal.
Defendant committed no crime when he purchased taxpaid whisky from an authorized source and transported it to its destination. G.S. 18-49 and 50. The crime was committed after the transportation was completed and when the whisky found its place of abode in a building declared by statute improper for that purpose. G.S. 18-11. Possession is illegal, G.S. 18-2, if not at an authorized place. The Legislature has the right, if it deems wise, to enlarge the class of places where legally acquired and transported whisky may be kept. We possess no such power.
No error.
PARKER, J., not sitting.