#### STATE v. OSCAR WATKINS.

(Filed 22 October, 1913.)

1. Indjctment — Spirituous Liquors — Persons to Jurors Unknown— .Actual S'ale — Trial—Evidence.

To convict under an indictment of sale of intoxicating liquors “to some person to tbe jurors unknown,” it is as necessary to offer evidence of an actual sale to tbe unknown person as if his name had been inserted in the indictment.

2. Same — Identification of Defendant — Verdict, Directing.

On a trial upon indictment for the unlawful sale of spirituous liquor alleged to have been made prior to the operative effect of chapter 44, Laws 1913, there was evidence’only that a barrel, marked tó defendant’s address, was found at his railroad shipping point, containing 30 gallons of whiskey; that the barrel was receipted for and was delivered to some person by the railroad agent, but the signature to the receipt was not identified .as the handwriting of the defendant, and the defendant was not identified as the one who received the barrel. The rule of evidence that the-possession of more than one quart of whiskey shajl be prima facie evidence of sale not applying to the county wherein the sale is alleged to have been made, it is Held, the court should have instructed the jury, upon the evidence, to return a verdict of not guilty.

Clark, C. J., dissenting; Allen, J., concurring in dissenting opinion.

Appeal by defendant from Ferguson, J., at February Term, • 1913, of COLUMBUS.'

Indictment for tbe sale of liquor to persons whose names are to tbe jurors unkown.

At tbe conclusion of tbe.evidence, tbe defendant requested tbe court to instruct tbe jury to. return a verdict of not guilty. Refused. Defendant excepted. Verdict of guilty. From tbe judgment rendered, defendant appealed.

*426 Attorney-General and Assistant Attorney-General for ■the State. . •

Schullcen, Toon & Schulleen for defendant.

Brown, J.

The following is all the evidence introduced on the trial of this case:

Gr. W. Rushing, witness for the State, testified: “I saw one barrel in the railroad depot at Hallsboro, marked 0. "Watkins. This barrel had whiskey marked on -it. The barrel looked like it would hold about 30 gallons. I do not know what was in the barrel.”

IT. O. Harvel, witness for the State, testified as follows: “I am agent for the Atlantic Coast Line Railroad Company at Hallsboro, N. C. On 5 August, 1912, a barrel containing about 30 gallons, marked ‘0. Watkins/ and also marked on the barrel ‘Whiskey/ was put off the train at Hallsboro, N. 0. Some time after the arrival of this barrel, and while I was agent, some one. came to the railroad office and receipted for this barrel. I do not know whether Oscar Watkins carried the barrel away or not. I do not know who got the barrel. I only know that some one receipted for it in the name of Oscar Watkins. I do not know where the defendant lives. I did not know Oscar Watkins at the time the barrel was. receipted for.”'

0. i. Benton, witness for the State, testified as follows: “I saw a barrel of whiskey, containing about 30 gallons, in the railroad warehouse at Ohadbourn, N. 0., marked ‘0. Watkins/' When I saw the barrel of whiskey in the warehouse it was in bad order and the whiskey was leaking out. I saw some parties catching the whiskey as it was leaking out of the barrel,, drinking it, and others catching it in buckets and carrying it away. The defendant Watkins was not there when I saw it. I do not know what became of. the barrel of whiskey. Oscar Watkins lives at Pine Log, about 5 miles from Ohadbourn and about 8 miles from Hallsboro.”

It is to be observed that the defendant is indicted for selling whiskey to some person to the jurors unknown. While this form of indictment is recognized, yet it is as much incumbent *427on tbe State to offer evidence tending to prove an actual sale to tbe unknown person as if bis name bad been inserted in tbe indictment. S. v. Dowdy, 145 N. C., 432; S. v. Dunn, 158 N. C., 654; S. v. McIntyre, 139 N. C., 599.

There is no evidence tbat tbe defendant in tbis bill ever-received tbe whiskey, much less sold it. Tbe evidence wholly fails to identify tbis Oscar Watkins with tbe person who received tbe whiskey.

Tbe receipted book was not put in evidence, and there was no attempt to prove tbe defendant’s handwriting, as well as no attempt to prove tbat be ever sold any of it.

Tbis case seems to have been tried as if tbe act of 1913, cb. 44, bad been in effect. Tbat. act creates two new offenses in respect to intoxicating liquors as well as a new rule of evidence contained in section 5; but tbat act went into effect on 1 April, 1913.

Tbis bill was returned in November, 1912, and tbe trial took place and judgment was pronounced in February, 1913. Therefore, tbe act of 1913 can have no bearing upon tbis case, and it must be determined under tbe law in force prior to tbat act.

Nor does tbe act considered by us in S. v. Barrett, 138 N. C., 630, apply. Tbis statute declared tbat tbe possession of more than one quart of whiskey should be prima facie evidence tbat tbe party in whose possession it was found bad it for tbe purpose of sale.

Tbe act applied only to Union County, and there was no such special act in force in Columbus County when tbis offense is alleged to have been committed. His Honor erred in refusing tbe instruction.

New trial.

Clark, C. J.,

dissenting: There was ample evidence to go tó tbe jury tending to show possession of tbe barrel of whiskey by tbe defendant. Tbe agent of tbe railroad testified tbat on 5 August, 1912, a barrel of whiskey containing about 30 gallons, marked “Whiskey” and addressed to O. Watkins, was put off tbe train at Hallsboro; tbat soon after, some one came to tbe *428railroad office, signed tbe receipt for tbis barrel, in tbe name of Oscar Watkins, and carried it off. Another witness testified tbat be saw a barrel of whiskey containing about 30 gallons in tbe railroad warehouse at Obadbourn, N. 0., marked O. Watkins. It is also in evidence tbat tbe defendant Oscar Watkins lived about 5 miles from Obadbourn and about 8 miles from Hallsboro. There is no evidence tbat any other Oscar Watkins lived in that section. Nor is there any evidence tending to show tbat tbe man who got tbe barrel of whiskey at Hallsboro was not tbe consignee, nor tbat bis signature on tbe books of the company receipting for tbe same was a forgery.

Unless such signature 'was a forgery, and unless tbe party ■who committed tbe forgery and received tbe whiskey was guilty also of larceny, then there was evidence to go to the jury that tbe defendant was in possession of 30 gallons of whiskey, and possibly of 60 gallons, for there was one barrel consigned to him at Hallsboro and another at Obadbourn. This evidence was more than a scintilla.

There is no presumption of law tbat any one committed two felonies, larceny and forgery. Tbe entry was made in due course of business. Receipting for the whiskey on the railroad books in tbe name of Oscar Watkins and taking it away, in tbe absence of any evidence to the contrary, was certainly sufficient to go to tbe jury on tbe question of possession. Tbis was all tbe evidence tbat tbe State can reasonably be called on to' trace tbe whiskey to bis possession. It Was easy for tbe defendant to negative tbis fact if be did not receive tbe whiskey; and be would have done so, if be could. There is no evidence to show that there was another O. Watkins in tbat section. Tbe evidence was sufficient to satisfy the jury, and did satisfy thém, that tbe defendant was tbe party who got tbe whiskey. It was addressed to him and receipted for in bis name.

His Honor correctly charged tbe jury: “Tbe possession of one barrel of whiskey shipped to tbe defendant at one depot, if you find tbat it was shipped to him and receipted for by him, and the shipping of another barrel to him at another date, if you . so find, are circumstances tending to show that the defend*429ant sold whiskey as charged; but that is for you to say.” In S. v. Barrett, 138 N. C., 630, which was an indictment under the Union County statute which made the possession of more than 1 quart of whiskey prima facie evidence of an intent to sell, Walker, J., says,in his concurring opinion that, independent of the statute (the defendant having ' in possession two 5-gallon kegs, a half-gallon jug, and 1 pint bottle), “having with him so large a quantity of liquor in packages of different-sizes and covered over with a laprobe was sufficient of itself to constitute prima facie evidence of the defendant’s guilty possession . . . The mere fact that -reference was made to the statute did not prejudice the defendant when his possession' under the circumstances, clearly shown by the evidence, and not disputed, was sufficient to carry the case to the jury.”

In this case there was ample evidence to satisfy a jury that the defendant was in the possession of 30 gallons receipted for and carried away in his name; and if the possession in the Barrett case of 10% gallons was sufficient to carry the case to the jury, certainly there was more than sufficient in this case.

In S. v. Barrett, Brown, J., in his dissenting opinion, says:' “Irrespective of the provisions of the act, I am of opinion that there was sufficient evidence to be submitted to the jury that the defendant did have in his possession liquor with the intent to sell it.” Under our decisions, proof of possession supports the charge of selling as effectively as it does the charge of having possession with the intent to sell. S. v. Dunn, 158 N. C., 654.

There was evidence to satisfy the jury that this defendant was receiving whiskey in large quantities, a barrel at a time, and in the absence of any evidence tending to show the character of the possession of so much whiskey, the jury was warranted in finding, as they did, that the defendant was engaged in selling whiskey to persons unknown, as charged in the bill of indictment. Hoke, J., in S. v. Dowdy, 145 N. C., 432; S. v. McIntyre, 139 N. C., 399. For what other purpose, if unexplained, did he have it ?

The court carefully and correctly charged the jury that they “must be satisfied beyond a reasonable doubt that the defendant *430sold liquor to persons unknown; that tbe possession of tbe whiskey, if tbe jury should find that it was shipped to and receipted for by him, are circumstances tending to show that the defendant sold whiskey; but that it was for the jury to say what was the weight to be given to those circumstances.”

The jury found the defendant guilty. There being no evidence that there was any other 0. Watkins in that neighborhood, and not the slightest evidence tending to show that any one committed forgery or larceny to get possession of the whiskey, nor that the railroad company would have delivered the barrel without the identification of the consignee, could the jury find otherwise than that the defendant obtained possession of the whiskey? Under the authority of the concurring opinion of Walker, J., and the dissenting opinion of Brown, J., in S. v. Barrett, supra, the possession of one barrel was the possession of three times as much as was necessary to constitute sufficient possession to submit the question of having the liquor to sell. If the defendant received both barrels, which he did not deny by any evidence, then the case was six times as strong against the defendant as in Barrett’s case.

The public policy of a State is declared by the Legislature, which is the lawmaking body. The policy of this State in regard to suppressing the traffic in intoxicating liquor was clearly declared by the Legislature of 1907 and ratified oh a Referendum, in 1908 by an.overwhelming majority at the ballot box. The province of the courts is to construe the law in accordance with the intent with which it was enacted. Whenever the courts in this State have found a defect that would interfere with the enforcement of this law, the Legislature has promptly corrected it. And the public intent to do this has been declared in the most explicit way, in the "Search and Seizure” law of 1913, ch. 44, whose title is “To secure the enforcement of the laws against the sale and manufacture of intoxicating liquor.”

It is doubtful if a jury could be impaneled in this State who would not find upon this uncontradicted evidence that the defendant received this whiskey, and that the presumption which, *431under the opinions in S. v. Barrett above cited, was raised from the possession of this quantity of liquor, was not rebutted. Indeed, there was no evidence whatever tending to rebut either the possession of the whiskey by the defendant or that he sold it. Certainly this “jury of the vicinage” had “no reasonable doubt,” and the defendant sought to get the court to hold him not guilty as a matter of law and not of fact.

His Honor did not charge, as he might have done, under the authority of the opinions in S. v. Barrett, above cited, that the’ possession of so large a quantity of whiskey raised a presumption that he had the whiskey for sale, nor that the whiskey being consigned to the name of the defendant and receipted for in his name raised a presumption that he received it. The Court merely charged that the jury should consider these as evidence, and unless they were satisfied beyond a reasonable doubt that the defendant sold whiskey, to find him not guilty. . The court might well have charged that the delivery of the barrel to the person who receipted for it in the name of the defendant and consignee raised a presumption that such consignee received the whiskey. 16 Cyc., 1072. But he did not do so, and left the evidence on both points to the jury, not as presumptions, but merely as circumstances to be weighed by them.

AlleN, J., concurs in dissenting opinion.