State v. . Ellis
185 S.E. 663
N.C.
1936
Check Treatment
Stacy, C. J.

Conceding that C. S., 3379, is still in force in New Hanover County and applicable to all persons, firms, associations, and corporations, other than the New Hanover County Alcoholic Beverage Control Board, it is made unlawful by said section for any person to have or to keep in bis possession, for the purpose of sale, any spirituous liquors, and proof of the possession of more than a gallon of such liquors, at any one time, constitutes "prima facie evidence of the violation of this section.”

In the case of S. v. Russell, 164 N. C., 482, 80 S. E., 66, the trial court instructed the jury, under cbs. 819 and 992, Public Laws 1907, making the possession of more than 2% gallons of intoxicating liquors in Meck-lenburg County prima facie evidence of its possession for the purpose of sale, as follows: “The statutory presumption in this case, to the effect that keeping or having on band or under one’s control more than 2% gallons of intoxicating liquor shall be prima facie evidence of an intent to sell same contrary to law is not binding upon the jury, though the defendant does' not see fit to introduce any testimony or to go on the stand as a witness for himself. The jury is still at liberty to acquit the defendant, if they find bis guilt is not proved beyond a reasonable doubt.” This instruction was approved and commended for its accuracy and precision, citing in support S. v. Wilkerson, 164 N. C., 431, 79 S. E., 888, and S. v. Barrett, 138 N. C., 630, 50 S. E., 506.

*168 It is also held for law in this jurisdiction that the trial court may not direct a verdict for the prosecution in a criminal action, when there is no admission or presumption calling for explanation or reply on the part of the defendant. S. v. Singleton, 183 N. C., 738, 110 S. E., 846; S. v. Hill, 141 N. C., 769, 53 S. E., 311; S. v. Riley, 113 N. C., 648, 18 S. E., 168.

A prima facie showing carries the issue to the jury and is sufficient to warrant, but does not compel, a conviction. S. v. Russell, supra; S. v. Wilkerson, supra; S. v. Barrett, supra; Speas v. Bank, 188 N. C., 524, 125 S. E., 398. It is only when the prima facie case of the statute is adminiculated by circumstances which point unerringly to the defendant’s guilt, and perforce require his conviction, if believed, that a peremptory instruction is permissible. 5 Wigmore on Evidence, sec. 2495. It was on this theory that the instructions were upheld in S. v. Langley, 209 N. C., 178, and S. v. Rose, 200 N. C., 342, 156 S. E., 916.

As against the prima facie case, there comes to the aid of the defendant the common-law “presumption of innocence,” which goes with him throughout the trial and stands until overcome by proof or an adverse verdict. S. v. Herring, 201 N. C., 543, 160 S. E., 891; S. v. Boswell, 194 N. C., 260, 139 S. E., 374. It is only in rare instances that a verdict may be directed for the prosecution in a criminal case. S. v. Riley, supra.

The defendant challenges the constitutionality of the act, ch. 418, sec. 21, Public Laws 1935, under which he was charged and convicted, but it is not after the manner of appellate courts to pass upon constitutional questions, even when properly presented, if there be also present some other ground upon which the case can be decided. In re Parker, 209 N. C., 693.

For error in directing the verdict, a new trial must be awarded. It is so ordered.

New trial.