{ "id": 11275918, "name": "THE STATE v. A. V. EMERY", "name_abbreviation": "State v. Emery", "decision_date": "1887-09", "docket_number": "", "first_page": "668", "last_page": "670", "citations": [ { "type": "official", "cite": "98 N.C. 668" } ], "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": "87 N. C., 529", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8696841 ], "opinion_index": -1, "case_paths": [ "/nc/87/0529-01" ] }, { "cite": "5 Jones, 250", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 11276891 ], "opinion_index": -1, "case_paths": [ "/nc/50/0250-01" ] }, { "cite": "3 Dev., 299", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 8692660 ], "opinion_index": -1, "case_paths": [ "/nc/14/0299-01" ] }, { "cite": "87 N. C., 529", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8696841 ], "opinion_index": 0, "case_paths": [ "/nc/87/0529-01" ] }, { "cite": "5 Jones, 250", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 11276891 ], "opinion_index": 0, "case_paths": [ "/nc/50/0250-01" ] } ], "analysis": { "cardinality": 271, "char_count": 4375, "ocr_confidence": 0.496, "pagerank": { "raw": 3.4812281529623587e-07, "percentile": 0.8817699410274499 }, "sha256": "c3d7bbc07200f4da4abcb319d272f5e23063abdae5f2d59fdeec692abc961815", "simhash": "1:2bfa7323cdf20c7e", "word_count": 797 }, "last_updated": "2023-07-14T17:51:55.485321+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE STATE v. A. V. EMERY." ], "opinions": [ { "text": "Davis, J.,\n(after stating the case). We can see no error in refusing the instruction asked for, nor can we see any error in the charge given by his Honor. The production of the license, if there was one, was a question of evidence. The-defendant says, \u201cthe State must show that there was no license, because it alleged, and it was necessary for it to allege, that he had none.\u201d The contrary has Been adjudged and settled by authority and conclusive reasoning. The license, if it exist at all, must be in the possession of the defendant, and ever since the case of the State v. Morrison, 3 Dev. Law, 299 \u2014 more than fifty years \u2014 it has been regarded as settled in this State that proof of the existence of a license to retail must come from the defendant. The clear and satisfactory reasoning of Judge RuffiN in the opinion in that case, by which it was made an exception to the general rule that \u201che who alleges must prove,\u201d has been accepted by the Courts, but counsel for the defendant now asks us to overrule that decision, upon the assumption that there was a necessity for it when the State v. Morrison was tried, which no longer exists, because of the fact that license issued now is a matter of record. So it was when the decision referred to was made, and it has since been recognized in State v. Evans, 5 Jones, 250, and in State v. Wilbourne, 87 N. C., 529, cited by counsel for defendant, though in the latter case RuffiN, Judge, says it should be limited as a precedent \u201c strictly to the facts of the case.\u201d It can never work a wrong or injury to the accused, and we can see no reason for reversing it now.\nThis disposes of the exception to his Plonor\u2019s charge.\nWe are unable to see from the record upon what ground the motion in arrest of judgment is based, and it was not pressed in this Court. The charge is for retailing unlawfully and without license in the county of Wake, and the evidence sustains the charge. If there is an exception in regard to Raleigh township it has not been made to appear to us.\nThere is no error.", "type": "majority", "author": "Davis, J.," } ], "attorneys": [ "The Attorney General, for the State.", "Mr. J. G. L. Harris, for the defendant." ], "corrections": "", "head_matter": "THE STATE v. A. V. EMERY.\nEvidence \u2014 Burden of Proof \u2014 License\u2014Retailing.\nUpon the trial of an indictment for retailing liquors without a license, the burden is upon the defendant to show a license.\n(States. Morrison, 3 Dev., 299; State v. Evans, 5 Jones, 250, &nd State v. Wilbourne, 87 N. C., 529, cited).\nThis was an indictment, tried before Shepherd, Judge, at the March Term, 1887, of Wake Superior Court.\nThere were three counts in the indictment, to the first two of which a nol. pros, was entered, and the defendant was tried upon the third only, which charged: \u201cThat the said A V. Emery, on the day and year last aforesaid, at and in the county aforesaid, wilfully and unlawfully did sell and retail unto Lafayette Nash spirituous liquor, by a measure and quantity less than a quart, to-wit, by the pint, he, the said A. V. Emery, not then and there having a license to sell and retail spirituous liquors,\u201d &c.\nThe only evidence was that of Lafayette Nash, who testified \u201c that on Monday, a week ago, he bought a cup of corn whisky, less than a quart, of the defendant in the city of Raleigh, Wake Comity, and that he paid him fifteen cents for it.\u201d\nThe defendant asked the Court to instruct the jury that there was no evidence to show that he had sold the whisky without a license. The Court declined to give the instruction, and the defendant excepted.\nThe Court, among other things, charged the jury that if they were fully satisfied that the defendant sold the whisky, as stated by the State\u2019s witness, and that the defendant had no license to sell, he was guilty under the third count; and if defendant relied upon a license to sell, it was his duty to produce it.\nThe defendant excepted to that part of the charge that related to the production of the license.\nThere was a verdict of guilty, and the defendant moved for a new trial:\n1. Because of refusal to give the instruction asked for.\n2. Because the Court erred in instructing the jury as to the duty of the defendant to produce the license.\nMotion overruled and defendant excepted.\nThe defendant then moved in arrest of judgment upon the third count, for that it did not charge any indictable offence in Raleigh township.\nMotion overruled, and defendant excepted. Judgment and appeal.\nThe Attorney General, for the State.\nMr. J. G. L. Harris, for the defendant." }, "file_name": "0668-01", "first_page_order": 700, "last_page_order": 702 }