State v. Causby
153 S.E.2d 467
N.C.
1967
Check Treatment
SHARP, J.

Defendant asserts in his brief that the judge activated his suspended sentence on the same evidence upon which the *749 jury had acquitted him on the preceding day and upon which the solicitor had entered a nolle prosequi. We assume the correctness of this statement although the evidence does not affirmatively disclose that the same whiskey and beer were involved. Decision, however, does not turn on this point.

When a jury or other tribunal having jurisdiction acquits a defendant of a criminal charge, it is clear that the same charge may not be the basis for invoking a previously suspended sentence. Likewise, a revocation of suspension cannot be bottomed solely upon a pending criminal charge; a conviction or a plea of guilty is required. State v. Coffey, 255 N.C. 293, 121 S.E. 2d 736; State v. Guffey, 253 N.C. 43, 116 S.E. 2d 148; State v. Hardin, 183 N.C. 815, 112 S.E. 593. In this case, however, the judge did not activate defendant’s suspended sentence because he had been charged with violating the prohibition law but because he had breached the condition that he not have any alcoholic beverages on his premises during the period of suspension.

The law permits an individual to possess in his home an unlimited quantity of tax-paid intoxicating liquor for his own use and that of his bona fide guests, but the possession of more than one gallon is prima facie evidence that such liquor is kept for the purpose of sale. G.S. 18-11; G.S. 18-32(2); D. & W., Inc., v. Charlotte, 268 N.C. 577, 151 S.E. 2d 241. Thus, without the restriction that defendant have no alcoholic beverages whatever on his premises during the five years his sentence was suspended, if he sold liquor but limited his inventory to not more than one gallon, the police (deprived of the prima facie case created by G.S. 18-32(2)) might be hard put to prove his possession for the purpose of sale. State v. Suddreth, 223 N.C. 610, 27 S.E. 2d 623. See State v. Hill, 236 N.C. 704, 73 S.E. 2d 894. This condition — -to which defendant had expressly consented — bore an obvious relation to the offense for which he had been convicted and was entirely reasonable. See State v. Smith, 233 N.C. 68, 62 S.E. 2d 495.

Before activating defendant’s suspended sentence, Judge Clark-son conducted a hearing de novo on the day following the jury trial and found facts which conclusively established a violation of the condition that defendant possess no alcoholic beverages on his premises. The judge was not precluded from revoking the suspension because he acted on the same evidence upon which defendant had been acquitted of the criminal charges involved. There is no inconsistency in the jury’s verdict, the solicitor’s nolle prosequi, and the judge’s order. Defendant could well be guilty of violating the terms of his suspended sentence — as the judge found — and not guilty of violating any criminal law — as the jury and the solicitor con- *750 eluded. State v. Coffey, supra. The evidence was that he had whiskey on his premises but not more than one gallon. Defendant’s possession of more than 5 gallons of beer (60 king-size cans is 7% gallons) constituted prima facie evidence that he had it for the purpose of sale. G.S. 18-32(4). Notwithstanding, for his own use, any individual may possess beer as defined by G.S. 18-64 “without restriction or regulation.” G.S. 18-66.

Judge Clarkson’s findings and order are fully supported by the evidence and the law. The judgment of the court below is

Affirmed.