245 N.C. 402 | N.C. | 1957
In this State it is unlawful for any person to have in possession intoxicating liquor for the purpose óf sale. G.S. 18-50. When the possession is for the purpose of sale, it makes no difference whether the liquor is taxpaid or nontaxpaid. S. v. Hill, 236 N.C. 704, 73 S.E. 2d 894.
It is not unlawful to possess taxpaid whiskey in one’s private dwelling, provided it is for the use of the owner, his family and guests. G.S. 18-11. The prima facie evidence rule under the section applies to the
This Court has held that where the offense charged is unlawful possession for the purpose of sale (G.S. 18-50), a conviction cannot be sustained for unlawful possession. Likewise, when the charge is unlawful possession (G.S. 18-48), a conviction cannot be sustained fo.r unlawful possession for the purpose of sale. S. v. Daniels, 244 N.C. 671, 94 S.E. 2d 799. The two crimes are separate and distinct — made so by different legislative enactments. They are of equal dignity and carry the same punishment. Neither charge includes the other. The crime of unlawful possession is not a part of the crime of unlawful possession for the purpose of sale.
In this case the warrant charged the unlawful possession of one and one-half gallons of taxpaid liquor for the purpose of sale. The minutes of the court show that the defendant was placed on trial, “Charge: Unlawful possession of taxpaid whiskey . . . for the purpose of sale.” The minutes further show that after the evidence was closed, the court “submitted only the charge of unlawful possession of one and one-half gallons of taxpaid whiskey to the jury.” When the court removed from the warrant the charge the possession was for the purpose of sale, it removed from the jury an essential element of the offense upon which the defendant was put to trial. Under the rule stated in the Daniels case, a conviction under the warrant could not be had for unlawful possession. The action of the court had the effect of withdrawing from the jury the .only charge before it. This action took place after the jury was impaneled and was equivalent to a verdict of not guilty of the charge of unlawful possession of taxpaid liquor for the purpose of sale.
The facts here disclosed appear upon the face of the record and require that the judgment be arrested. The defendant is entitled to a discharge, and it is so ordered.
Judgment arrested.
