State v. Brady
78 S.E.2d 126
N.C.
1953
Check Treatment
Winborne, J.

Dеfendant brings to tbis Court numerous assignments of error On which be states, in bis brief, three questions relating: (1) To exceptions to tbe admission of testimony as to other offenses. (2) To exception to admission of evidеnce obtained under search warrant. (3) To exceptions to tbe charge of tbe court.

I. Tbe second question as stated relates to denial of defendant’s motion to ■ strike tbe testimony tbat tbе State’s ‍‌​‌​‌‌​‌‌​‌‌​‌​​‌‌​​‌‌‌​​​‌​​‌​​​‌​​‌​​‌‌​‌‌​​​‌‍witness Deputy Sheriff Quidley obtained under tbe search warrant. Tbis exception is without merit. See S. v. McLamb, 235 N.C. 251, 69 S.E. 2d 537. There tbe *406 sеarch warrant was obtained under circumstances almost identical to the circumstances under which the search warrant was obtained in the case in hand. There exceptions, as here, wеre taken to the admission of evidence secured by officers under the search warrant. It was сontended that the search warrant was defective for that the justice of the peace, who issued it, failed to comply with the requisites of G.S. 15-27, and amendments thereto, in that the procuring officеr was not required to furnish sufficient facts to show probable cause for the issuance of such warrаnt. In connection therewith this Court held that the provisions of G.S. 18-13 are applicable rather than those of G.S. 15-27, saying that G.S. 18-13 provides that “upon . . . information furnished under oath by an officer charged with the exеcution of the law, before a justice of the peace . . . that he has reason to believe that any person has in his possession, at a place or places specified, liquor for the purpose of sale, a warrant shall be issued commanding the officer to whom it is directеd to search the place or places described in such . . . information; and if such liquor be found in аny such place or places, to seize and take into his custody all such liquor . . . and to keep the same subject to the order of the court.” And the court concluded the subject in these words: “Testing the affidavit of the officer here in question by the provisions of this statute, G.S. 18-13, it appears that the mаtters contained in the affidavit are sufficient to justify the justice of the peace to issue the sеarch warrant” and “here in the admission of the evidence to which such exceptions relatе, error is not made to appear.” What is said there is pertinent, and applicable here.

II. The first question is based upon exceptions which challenge the competency of evidence that on several other occasions, within ‍‌​‌​‌‌​‌‌​‌‌​‌​​‌‌​​‌‌‌​​​‌​​‌​​​‌​​‌​​‌‌​‌‌​​​‌‍two years, when defendant’s home was searched, whiskey was found therein, — but never more than 4 or 5 pints. This does not make a prima facie case of unlawful possеssion of intoxicating liquor for the purpose of sale on those occasions.

Indeed, under the law as enacted by the General Assembly of North Carolina, where a person has in his possession tax-paid intoxicating liquors in quantity not in excess of one gallon, in his private dwelling, ‍‌​‌​‌‌​‌‌​‌‌​‌​​‌‌​​‌‌‌​​​‌​​‌​​​‌​​‌​​‌‌​‌‌​​​‌‍in a county in which the sаle of such intoxicating liquor is not authorized under the Alcoholic Beverage Control Act, P.L. 1937, Chap. 49, nothing else appearing, such possession is not now prima facie evidence that such intoxicants are so possessed for the purpose of sale. See S. v. Suddreth, 223 N.C. 610, 27 S.E. 2d 623; S. v. Watts, 224 N.C. 771, 32 S.E. 2d 348; S. v. Wilson, 227 N.C. 43, 40 S.E. 2d 449; S. v. Barnhardt, 230 N.C. 223, 52 S.E. 2d 904; S. v. Brady, 236 N.C. 295, 72 S.E. 2d 675; D. v. Hill, 236 N.C. 704, 73 S.E. 2d 894.

*407 Hence evidence that defendant on other occasions possessed whiskey within the pale of the law has no relevancy to his pоssession of whiskey beyond the pale of the law at another time. Therefore such evidence is nothing ‍‌​‌​‌‌​‌‌​‌‌​‌​​‌‌​​‌‌‌​​​‌​​‌​​​‌​​‌​​‌‌​‌‌​​​‌‍more than an intimation by the State that his lawful possession of whiskey on those other occasions was unlawful. That just cannot be! Eut the court added to it the weight of its authority, by admitting the evidence, S. v. Alson, 94 N.C. 930, and by сharging the jury that “the State has offered evidence which it contends tends to show that his premises had been visited many times during the period of two years next preceding November 10, 1951, and that witnesses said that they had never been to his premises when they did not find whiskey there.” The testimony was irrelevant, and highly prejudiciаl, and should have been excluded. Failure to do so, was error. S. v. Freeman, 49 N.C. 5; S. v. Alson, supra. See also S. v. Brown, 202 N.C. 221, 162 S.E. 216.

III. The third question challenges portiоns of the charge, particularly the concluding instruction in respect to the possession of whiskey at the time here charged, that ‍‌​‌​‌‌​‌‌​‌‌​‌​​‌‌​​‌‌‌​​​‌​​‌​​​‌​​‌​​‌‌​‌‌​​​‌‍“if the State has satisfied you upon all the evidence in this easе that he had it there for the purpose of sale, then, gentlemen, you should return a verdict of guilty.”

The viсe pointed out in the instruction is the degree of proof, that the jury be “satisfied,” instead of the correct degree “satisfied beyond a reasonable doubt.”

In this connection it is true that in some other portions of the charge the correct rule is given. Nevertheless, where the court charges correctly in one part of the charge, and incorrectly in another, it will be held for error, sinсe the jury may have acted upon that which is incorrect. This holding is in accordance with uniform decisions of this Court. S. v. Johnson, 227 N.C. 587, 42 S.E. 2d 685. See also Templeton v. Kelley, 217 N.C. 164, 7 S.E. 2d 380, and numerous other cases there cited.

For reasons stated, let there be a

New trial.