State v. Lee

Dec 13, 1913

Versions:164 N.C. 533

80 S.E. 405

1913 N.C. LEXIS 99

AlleN, J.

The authority of his Honor to permit-an amendment of the warrant is well settled. S. v. Vaughan, 91 N. C., 532; S. v. Telfair, 130 N. C., 645.

The othеr exception relied on by the defendant involves a construction • of the language in the Search and Seizure Law (ch. 44, Laws 1913), “to have or keep in his, their, or its possession for the purpose of sale any spirituous, vinous, or malt liquors.”

The contention of the - defendant is that by “possession” is meant an actual possession, and that as the whiskey did not reach the defendant, and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was seized in the hands of his' agent, he is not guilty, and the- statutory presumption from the possession of more than one gallon cannot arise.

The Search and Seizure Law has been upheld as valid and constitutional in S. v. Wilkerson, ante, 431, and if we were to sustain the position of the defendant, an act passed to secure the enforcement of the laws against the sale of intoxicating liquors, instead of effecting its purpose, would be a shield and protection to'.the principal offenders against the law. Intoxicating liquors intendеd for sale would not hereafter come into the actual possession of the owner, but would be left with an agent, and the moving party and instigator of violations of law would frequently escape punishment.

We are not, therefore, inclined to givе to the statute this restricted ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍construction, and the language used does not require us to do so.

*536 The act says “the possession, of,” which includes actual and cоnstructive possession, and as the General Assembly is presumed to have acted advisedly and with a knowledge of the legal meaning of the term, we are not at liberty to amend the act by inserting before the word “possession” the word “actual.”

We find no direct authority upon the question, here or elsewhere; but the decisions upon statutes making it indictable to have counterfeit money or burglar’s tools in possession furnish a complete analogy.

It was held in Reg. v. Williams, 1 Car. and Marsh, 259 (41 E. C. L., 145), that, “In order to convict a person charged on the stat. 2 Will. IV., ch. 34, sec. 8, with having in his possession more than threе pieces of counterfeit coin, with ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍intent to utter them, it is not necessary that thе possession should be 'individual possession, but it is enough if the coin be" in the possessiоn of the person charged, or his immediate agent”; in S. v. Washburn, 11 Iowa, 245, that coin deposited in a secret place was in possession of the defendant, and that “if the coin was within the power of the prisoner, in such sense that he could and did command its use, the possession was as complete, within the meaning of the statute, as if it had bеen actual”; and in S. v. Potter, 42 Vt., 495, that burglar’s tools left by the husband with the wife were in possession of thе husband, the opinion being based on the general law, and not on the marital relаtionship.

Again, in McLean Crim. Law, vol.,2, sec. 785: “The possession may be sufficient, although thе counterfeit coin is deposited in a secret place, provided it is within thе knowledge and control of the accused; and even though acquired by the аccused with the knowledge of the police and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍immediately afterwards seized so that there could not have been any opportunity for making a fraudulent usе thereof. . . . There may be a joint possession where two or more persons are acting in concert in the having and intending to pass, and the possession mаy be by an agent.”

The reasoning in S. v. Stroud, 95 N. C., 631, is also pertinent and persuasive. In that case the defendant was charged with receiving stolen goods, and the point was made that the defend *537 ant could not be convicted because be was not in actual possession of tbe goods; but tbe Court refused to give its assent to tbis position, and said: “To cоnstitute tbe criminal offense of receiving, it is not necessary that tbe goods ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍should be tracеd to tbe actual r ersonal possession of tbe person charged with receiving. It v Ould certainly make him a receiver in contemplation of law if tbe stolen property was received by bis servant or agent, acting under bis directions, be knowing at tbe time оf giving tbe orders that it was stolen, for qui facit per alium facit per se. It is tbe same as if be bad done it himself.”

We are, therefore, of opinion, ón reason and authority, that the evidence was sufficient to establish tbe fact of possession within tbe meaning of tbe statute, and that tbis possession made out a prima facie case against tbe defendant.

His Honor charged tbe jury as to tbe effect of tbe prima facie case in accordance with tbe opinion of tbis Court in S. v. Wilkerson, ante, 431, and S. v. Russell, ante, 482.

No error.