#### STATE v. L. S. ROCHELLE.

(Filed 1 November, 1911.)

1. Intoxicating Liquors — Unlawful Sales — Revenue License — Defense — Evidence—Presumptions.

Upon a trial for tbe illegal sale of intoxicating liquors, it is not reversible error for tbe judge to exclude from tbe evidence a subpoena duces tecum issued to the collector of internal revenue for the purpose of showing tbat no license to sell bad been issued to the defendant, as no presumption is raised on tbe question of an illegal sale because no U. S. license to sell has been issued bim.

2. Intoxicating Liquors — Unlawful Sales — Alibi—Evidence Scrutinized — Instructions.

In defense to an action for tbe illegal sale of intoxicating liquors, tbe defendant relying on an alibi, it was not error for tbe trial court to quote from a Supreme Court decision, that tbe defendant’s evidence in such cases “should be closely scrutinized, because of its liability to abuse,” when it appears tbat be carefully and properly explained how this evidence should be scrutinized and accepted by tbe jury, and that'an alibi, if found by them, would be a complete defense.

Appeal by defendant from 0. U. Allen, J., at July Special Term, 1911, of Durham.

Attorney-General T. W. Bichett ancl Assistant Attorney-General Georye L. Jones for the State.

V. S. Bryant and B. S. Royster for the defendant.

Clark, C. J.

Tbe defendant was convicted of tbe illegal sale of intoxicating liquor. Tbe first exception is because tbe court declined to allow bim to put in evidence a subpoena duces tecum issued by tbe State for Wheeler Martin, Collector of Internal Eevenue, tó bring witb bim a list of all persons in said county wbo bad obtained United States license to sell liquor. It is true tbat wben a man takes out United States license to sell liquor, under our statute a presumption arises tbat be is engaged in tbat business. But tbe fact tbat he has no such license from tbe United States Government does not raise a presumption tbat tbe defendant is not engaged in tbe illegal sale of liquor. It may well be tbat tbe defendant did *642not consider snob license necessary for bis purpose, or profitable or prudent. It costs money and makes evidence against bim.

Tbe only other exceptions requiring notice are exceptions 3 and 4 to tbe charge of tbe court, as follows:

Exception 3. “If tbe defendant attempts to prove an alibi, and fail in it, it becomes a circumstance for tbe jury to consider. They can regard it entirely as unproven, and they can also consider tbe failure t.o establish an alibi, if tbe jury find be has failed in doing so, and give it such force as tbe jury may deem proper.”

Exception 4. “You should carefully consider tbe evidence offered to establish an alibi, because of its liability to abuse, as our Supreme Court says.”

In S. v. Jaynes, 78 N. C., 504, Bynum, J., said that evidence of an alibi “should be closely scrutinized because of its liability to abuse.” His Honor, therefore, was, as be said, simply quoting from a 'decision of this Court. We do not understand bim as intimating that failure to prove an alibi was any evidence of guilt. He simply said that evidence of that kind should be closely scrutinized. Indeed, bis Honor in that connection himself fully explained tbe meaning of tbe word “scrutinize,” as follows: “It simply means that you should cautiously examine tbe evidence of tbe character I have alluded to, tbe evidence of tbe detective, tbe evidence of tbe defendant, tbe evidence tending or intending to establish an alibi. By scrutinizing, I have already said, you should study it carefully and examine it and cautiously receive it. You should carefully examine and scrutinize tbe evidence of tbe detective, because of his bias, likely to exist by reason of bis employment to find tbe evidence. You should carefully scrutinize tbe evidence of tbe defendant because of bis interest. You should carefully scrutinize tbe evidence offered to establish an alibi because of its liability to abuse, as our Supreme Court says.” Thus read in connection with tbe context, tbe expression of tbe careful and cautious judge who tried this- case could not have been misunderstood by tbe jury, and was but a statement of tbe law as laid' down by this Court.

*643His Honor further told the jury that if tbe defendant established an alibi, it is a complete defense; and as to the defendant’s testimony, he told them that while the jury should scrutinize it and receive it cautiously, yet if after scrutinizing it they were satisfied of the truth of it, they should give it the same force and effect as that of any other witness.

No error.