#### STATE v. GEORGE ATWOOD.

(Filed 8 April, 1914.)

Intoxicating Liquors — Search and. Seizure — Possession—Prima Fa-cie Case — Trials—Instructions—Appeal and Error — Harmless Error.

An erroneous charge under the search and seizure law, that one gallon of intoxicating liquor made out a prima facie case that defendant had it for the purpose of an unlawful sale, is rendered harmless under the evidence in this case establishing the fact that the defendant had more than that quantity. 8. v. Moore, ante, 284, approved, denying the defendant’s motion in arrest of judgment for that the warrant did not negative that he was a druggist, etc.

Appeal by defendant from Devin, J., at December Term, 1913, of Forsyth.

This is an indictment under tbe search and seizure law, charging the defendant with having intoxicating liquors in his possession for the purpose of sale.

The only witness offered by the State was George W. Elynt, who testified that on 23 November he had a warrant against the defendant for having in his possession liquor for the purpose of sale, and in company with another officer went to the house of the defendant, south of Winston-Salem, and found that the defendant was not at homo, but his wife was there, and he notified the defendant’s wife that he wished to make a search for liquors. That he found on the premises of the defendant one jug containing one gallon of liquor and a number of small bottles containing about one-half gallon. In addition to the liquor, he found a number of empty bottles, a rubber tube and several tin vessels, about which he noticed the smell of whiskey. He further testified that he took possession of the spirits and tin vessels, including an empty keg, and in company with the officer who went with him started back to Winston-Salem. On his way back he met the defendant in a buggy with one Sam Reid. That he asked the defendant if he had any liquor in the buggy with him, and the defendant said he had a pint, and upon searching the buggy *439be found three pint bottles, but tbe defendant claimed tbat two of tbe pints belonged to Sam Reid, wbicb Reid denied.

Tbe State closed tbe evidence, and tbe defendant offered no evidence.

His Honor charged tbe jury tbat having possession of a gallon of liquor, or more, is’evidence tbat tbe defendant bad it for sale, and while this is true, tbe State must satisfy tbe jury beyond a reasonable doubt tbat tbe defendant bad said liquor in bis possession for tbe purpose of sale, and not merely for his own private use.

Tbe defendant excepted. Jury rendered a verdict of guilty, with recommendation, towit, mercy of tbe court, and bis Honor sentenced tbe defendant to six months to tbe county jail to be worked on tbe county roads. Tbe defendant excepted.

Tbe defendant moves in arrest of judgment in'this Court for tbat tbe indictment fails to negative tbe exception in tbe statute tbat tbe defendant is a druggist or tbe keeper of a medical depository.

Attorney-General Bickett and Assistant Attorney-General Calvert for the State.

Watson, Buxton & Watson, Hastings & Whicker for defendant.

Per Curiam.

His Honor was in error in charging tbat tbe possession of one gallon of liquor was evidence -that tbe defendant bad it for sale, as tbe statute only gives this effect to tbe possession of liquor when tbe quantity exceeds one gallon in some degree; but this could not have affected tbe verdict, as all the-evidence showed tbat be bad one gallon and three pints at borne and one pint in bis buggy.

Tbe language of tbe statute is, “Tbe possession of more than one gallon of spirituous liquors at one time, whether in one or more places,” shall constitute prima facie evidence, etc.

Tbe questions raised by tbe motion in arrest of judgment have been decided adversely to tbe defendant in S. v. Moore, ante, 284.

No error.