State v. . Emery

Sep 5, 1887
Reporters:
,
Before:
Davis
Davis, J.,

(after stating the case). We can see no error in refusing the instruction asked for, nor can we see any error in the charge given by his Honor. The production of the license, if there ‍​​​‌​​​​‌‌​‌​‌‌‌​‌​​​​​​​‌‌‌‌‌‌‌​​​‌​​​‌‌‌‌​​​​​‌‌‌‌​‌​‌​‌‌​​​​‌​‌​​​​​​​​‌‌‌‌‌​​​​‌‌​‌‌‌​‌​​‌​​‍was one, was a question of evidence. The-defendant says, “the State must show that there was no license, because it alleged, and it was necessary for it to allege, *670 that he had none.” The contrary has Been adjudged and settled by authority and conclusive reasoning. The license, if it exist at all, must be in the possession of the defendant, and ever since the case of the State v. Morrison, 3 Dev. Law, 299 — more than fifty ‍​​​‌​​​​‌‌​‌​‌‌‌​‌​​​​​​​‌‌‌‌‌‌‌​​​‌​​​‌‌‌‌​​​​​‌‌‌‌​‌​‌​‌‌​​​​‌​‌​​​​​​​​‌‌‌‌‌​​​​‌‌​‌‌‌​‌​​‌​​‍years — it has been regarded as settled in this State that proof of the existence of a license to retail must come from the defendant. The clear and satisfactory reasoning of Judge RuffiN in the opinion in that case, by which it was made an exception to the general rule that “he who alleges must prove,” has been accepted by the Courts, but counsel for the defendant now asks us to overrule that ‍​​​‌​​​​‌‌​‌​‌‌‌​‌​​​​​​​‌‌‌‌‌‌‌​​​‌​​​‌‌‌‌​​​​​‌‌‌‌​‌​‌​‌‌​​​​‌​‌​​​​​​​​‌‌‌‌‌​​​​‌‌​‌‌‌​‌​​‌​​‍decision, upon the assumption that there was a necessity for it when the State v. Morrison was tried, which no longer exists, because of the fact that license issued now is a matter of record. So it was when the decision referred to was made, and it has since been recognized in State v. Evans, 5 Jones, 250, and in State v. Wilbourne, 87 N. C., 529, cited by counsel for defendant, though in the latter case RuffiN, Judge, says it should be limited ‍​​​‌​​​​‌‌​‌​‌‌‌​‌​​​​​​​‌‌‌‌‌‌‌​​​‌​​​‌‌‌‌​​​​​‌‌‌‌​‌​‌​‌‌​​​​‌​‌​​​​​​​​‌‌‌‌‌​​​​‌‌​‌‌‌​‌​​‌​​‍as a precedent “ strictly to the facts of the case.” It can never work a wrong or injury to the accused, and we can see no reason for reversing it now.

This disposes of the exception to his Plonor’s charge.

We are unable to see from the record upon what ground the motion in arrest of judgment is based, and it was not pressed in this Court. The charge is for retailing unlawfully ‍​​​‌​​​​‌‌​‌​‌‌‌​‌​​​​​​​‌‌‌‌‌‌‌​​​‌​​​‌‌‌‌​​​​​‌‌‌‌​‌​‌​‌‌​​​​‌​‌​​​​​​​​‌‌‌‌‌​​​​‌‌​‌‌‌​‌​​‌​​‍and without license in the county of Wake, and the evidence sustains the charge. If there is an exception in regard to Raleigh township it has not been made to appear to us.

There is no error.