{
  "id": 8653236,
  "name": "STATE v. McINTYRE",
  "name_abbreviation": "State v. McIntyre",
  "decision_date": "1905-11-07",
  "docket_number": "",
  "first_page": "599",
  "last_page": "602",
  "citations": [
    {
      "type": "official",
      "cite": "139 N.C. 599"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "33 W. Va., 146",
      "category": "reporters:state",
      "reporter": "W. Va.",
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        8639741
      ],
      "opinion_index": 0,
      "case_paths": [
        "/w-va/33/0146-01"
      ]
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    {
      "cite": "123 U. S., 62",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "opinion_index": 0
    }
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  "last_updated": "2023-07-14T18:57:29.236172+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. McINTYRE."
    ],
    "opinions": [
      {
        "text": "Hoke, J.\nThe defendant was indicted under the law regulating the sale of intoxicating liquors in Cumberland Coxinty, for having in his possession and under his control more than two gallons of whiskey at one time with intent to'sell the same.\nThe statutes under which the defendant was convicted .(Laws 1903, chap. 125, and Laws 1905, chap. 800,) contain no such offense as that specifically charged in the bill of indictment. They make it unlawful to rectify, manufacture, sell or otherwise dispose of, for gain, intoxicating liquors, etc., establish minute regulations for the sale of whiskey by druggists for medicinal purposes, and impose specific duties on various officers in enforcement of the acts, but, nowhere, so far as we can discover, make it indictable to have in possession whiskey with intent to sell.\nIt is argued that under section 20, chapter 800, Laws 1905, \u201cthe having in possession more than two gallons of spirituous liquors\u201d is unlawful, and rejecting the concluding words of the charge \u201cwith intent to sell,\u201d as surplusage, the indictment would contain a distinct and substantive offense, made .criminal by the law. We do not think, however, that this was the intent of the Legislature, nor is it a correct interpretation of the section. The statute had already clearly defined .the acts, made criminal so far as individuals were concerned, imposing specific and severe punishment for, its violation, and is here dealing with the administrative features of the law. The entire section reads: \u201cThat it shall be unlawful for any person to have in his or her possession. or under bis or ber control, more than two gallons of spirituous liquors or more than five gallons of malt liquors at any one time, and tbe possession of a greater quantity shall be prima facie evidence . tbat sucb person is engaged in tbe illegal sale of liquor.\u201d Tbis is all in one sentence, and tbe latter part of it, \u201cshall be prima facie evidence,\u201d gives clear indication tbat it was tbe only effect contemplated as tbe result of forbidden possession contained in tbe first part of the sentence \u2014 tbe correct interpretation being tbat tbe Legislature only intended to give the possession of more than two gallons of whiskey evidential force on tbe charge of illegal sale, and did not intend to create a distinct and substantive offense.\nWe are confirmed in tbis conclusion by the consideration tbat there is grave doubt if it is in tbe power of tbe Legislature to make tbe mere ownership or possession of a given amount of whiskey in itself a crime. . Tbe right to own property is ordinarily one of tbe rights regarded as fundamental, which may not be forbidden, forfeited or interfered with by legislation except in tbe assertion of eminent domain or in the exercise of tbe police power. Only in tbe rarest instances can tbe police power be c\u00e1lled on to regulate or control tbe conduct of individuals in tbe privacy of their own homes, or when not involving any relationship to others or tbe public.\nIt is true tbat tbe Supreme Court of tbe United States in Mugler v. Kansas, 123 U. S., 62, and in several cases since tbat time, has given decided intimation tbat tbe police power can lawfully be extended to almost any phase of tbe use of spirituous liquors, and tbat the Legislature must determine tbe extent of its exercise. And tbis is certainly the general trend of tbe modern decisions on tbe subject.\nAt tbe same time,' no legislation, so far as we recall, has as yet gone to tbe extent of making tbe mere ownership or possession of whiskey a crime except perhaps in furtherance of a State monopoly when in aid of tbe State\u2019s revenue. \u201cThey have all stopped short of dealing with private consumption of whiskey,\u201d says a recent writer on the subject. The only one we have discovered which approaches the extent claimed for the present law, was one in the State of West Virginia, making it a crime to keep in possession spirituous liquors for another, and this was declared unconstitutional by the Supreme Court of that State. State v. Gilman, 33 W. Va., 146.\nThe court does not desire or intend to express an opinion on this very important question. The comments are only made in support of the position that the act in question, from the context and the casual and incidental way in which it is expressed, does not, and does not intend to, make the possession of whiskey in itself a crime, but that such possession of the prohibited quantity was only evidential in prosecution for the illegal sale of spirituous liquors, made criminal by other sections of the act.\nWe hold that no crime is charged against the defendant in the bill of indictment, and the judgment against him must be arrested.\nJudgment Arrested.",
        "type": "majority",
        "author": "Hoke, J."
      }
    ],
    "attorneys": [
      "Robert D. Gilmer, Attorney-General, for the State.",
      "Thos. H. Sutton and N. A. Sinclair for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. McINTYRE.\n(Filed November 7, 1905).\nIntoxicating Liquors, Possession of \u2014 Statute Construed.\n1. Under the provisions of section 20, chap. 800, Laws 1905, providing that it shall be unlawful for any person to have in his possession more than two gallons of whiskey at any one time, and the possession of a greater quantity shall be prima facie evidence that such person is engaged in the illegal sale of liquor, the Legislature only intended to give the possession of more than two gallons of whiskey evidential force on the charge of illegal sale and did not intend to make the possesion of such quantity of whiskey in itself a crime.\n2. Quere: Whether it is in the power of the Legislature to make the mere ownership or possession of a given amount of whiskey in itself a crime.\nINDICTMENT against William McIntyre, beard by Judge Fred Moore and a jury, at the August Term, 1905, of the Superior Court of CumberlaNd County. There was a verdict of guilty, and from the judgment thereon, the defendant appealed.\nRobert D. Gilmer, Attorney-General, for the State.\nThos. H. Sutton and N. A. Sinclair for the defendant."
  },
  "file_name": "0599-01",
  "first_page_order": 637,
  "last_page_order": 640
}