#### STATE v. ERNEST SHEFFIELD.

(Filed 26 April, 1922.)

1. Intoxicating Liquor — Spirituous Liquor — Unlawful Sales — Evidence— Open Questions for Jury — Possession—Prima Facie Case.

Upon the trial of defendant for having the unlawful possession of liquor for the illegal purpose of sale, there was evidence that the defendant had one-half gallon thereof in his automobile at the time of his arrest thereat, in two one-quart flasks, and declared that one of them was for himself and the other for a person whom he would not name, and that a search of his house at a previous time did not result in finding liquor therein, but in finding a place where a still had been operated about 150 yards distant. There was also evidence that at the time of the arrest the defendant declared it was not the first time he had had liquor, and that it would not be the last, and threatened injury to any one who had informed on him: Eeld, no prima faeie case had been made out under the statute, but that all the evidence, when properly considered, was sufficient for an inference that he had the liquor, one quart at least, for the purpose of an illegal sale, upon which the jury could render a verdict of guilty, as upon an open question of fact.

S. Intoxicating Liquor — Spirituous Liquor — Unlawful Sales — Acting for Another.

One who participates in effecting the sale of liquor from one person to another is equally guilty of the unlawful sale thereof as the one for whom he was acting.

3. Appeal and Error — Instructions—Contentions—Arguments—Reply of Judge — Harmless Error.

Upon this trial of defendant for having liquor in his possession for the purpose of an unlawful sale: Eeld, the recitation of the solicitor’s argument upon the waiver by defendant of his right to have the case removed to another justice of the peace for the preliminary hearing, was not to the defendant’s prejudice, as the judge immediately and conclusively answered them, and fully protected his rights.

Appeal by defendant from Ferguson, J., at October Special Term, 1921, of Moore.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

H. B. Ihrie and II. F. Seawell for defendant.

Walker, J.

The defendant was convicted under an indictment which in a single count charged him with having the illegal possession of whiskey for the purpose of sale, and from the judgment, upon conviction, appealed to this Court.

There was no evidence in the record, except that of the State, and it contends that being capable of two inferences, it was argued upon those *784inferences and submitted to tbe jury, who found tbe defendant guilty. Stated briefly, tbe State’s evidence was as follows: Deputy Sheriff Brown arrested tbe defendant in tbe town of Hemp, 1 October, 1921, found a rifle in bis automobile, and, under tbe cushion of tbe back seat, a half gallon of whiskey in two quart packages. At tbe time tbe defendant was arrested be was under bond in another whiskey case. Sheriff Brown immediately carried him before a justice of tbe peace, and on tbe way defendant told him there was no use of having a trial, that be would just waive examination. He said that be bad got a quart for himself and another quart for somebody else, but refused to tell who tbe other person was. He further said that tbe man who reported him bad better never tell it or be would fix him and fix him good. Tbe justice of tbe peace was present when tbe defendant was arrested, and at tbe trial told him be could move tbe ease. Thereupon, tbe defendant replied that be bad tbe liquor, and it was not tbe first time be bad bad liquor, and be would have some more pretty soon. Tbe justice of tbe peace testified that as a revenue officer be bad searched defendant’s premises a number of times, but found nothing to arrest him for; but be did find where a still bad been operated about 150 yards from bis bouse.

This is substantially tbe State’s evidence. At its conclusion defendant demurred to tbe evidence, and excepted to tbe judge’s overruling tbe motion to dismiss. Tbe above statement shows evidence sufficient to carry tbe case to tbe jury.

Tbe court left it to tbe jury to determine upon all tbe evidence whether tbe defendant bad possession of tbe liquor innocently, or for tbe purpose of selling, or assisting in selling, it to another. Tbe defendant, upon bis own statement, bad procured tbe liquor, one quart for himself and tbe other quart for tbe person to whom be was carrying it at tbe time tbe officer arrested him. Tbe jury could fairly and' reasonably draw tbe inference, that be bad purchased tbe liquor from some one else for himself and the other person. He did not state that it bad been given to him, but said, rather defiantly, in answer to tbe justice of tbe peace who bad agreed to remove tbe case from him, that “be bad tbe liquor, and it was not tbe first time be bad bad liquor, and that be would have some more pretty soon,” and also threatened tbe man who bad reported him, adding that be bad better never let him know who it was, for if be did, “be would fix him, and fix him good.” Tbe liquor was found in tbe car, under tbe cushion of tbe rear seat. Upon this evidence there was no prima facie case that tbe law bad been violated, and tbe court did not so instruct tbe jury, but left it to tbe jury, upon all tbe evidence, and as an open question of fact, to find whether tbe defendant bad tbe liquor in bis possession for tbe purpose of unlawfully delivering it, as agent for tbe seller, to tbe person for whom, be bad testified, it was *785intended. If be was- participating in effecting tbe sale of tbe liquor from one person to another be was just as guilty as if be bad" sold it himself, as tbe principal, and was not merely aiding a third party to make tbe sale. S. v. Burchfield, 149 N. C., 537, which seems to answer fully all tbe contentions of tbe defendant in 'this respect.

Tbe part of tbe charge relating to tbe defendant’s waiver of a preliminary examination before a justice of tbe peace was only tbe statement of a contention, or argument, by tbe State, to which tbe judge gave an immediate and conclusive reply, which fully protected tbe rights of tbe defendant, and rendered harmless any reference to tbe alleged waiver.

No error.