State v. Tillery , 243 N.C. 706 ( 1956 )

92 S.E.2d 64 (1956) 243 N.C. 706

STATE
v.
Sam TILLERY.

No. 217.

Supreme Court of North Carolina.

March 28, 1956.

Weeks & Muse, Tarboro, for defendant, appellant.

Wm. B. Rodman, Jr., Atty. Gen. and Harry W. McGalliard, Asst. Atty. Gen., for the State.

BOBBITT, Justice.

When a warrant or bill of indictment, which charges the unlawful possession and unlawful transportation of intoxicating liquor, describes the liquor as "nontax-paid," conviction may be had, as the evidence may warrant, either under the Alcoholic Beverage Control Act, G.S. Ch. 18, Article 3, or under the Turlington Act, G.S. Ch. 18, Article 1. These statutes are construed in pari materia. State v. Hill, 236 N.C. 704, 73 S.E.2d 894; State v. Gibbs, 238 N.C. 258, 77 S.E.2d 779.

Even so, when the warrant or bill of indictment describes the liquor as "nontax-paid liquor," these descriptive words identify the liquor referred to therein. State v. Merritt, 231 N.C. 59, 55 S.E.2d 804. Here the State limited the accusation to "non-tax-paid" liquor. Thus, the defendant in effect was furnished a bill of particulars. G.S. § 15-143. This limited the evidence to the matters and things stated therein. State v. Beal, 199 N.C. 278, 154 S.E. 604.

The testimony of the State's witness, by way of describing the liquor found when a search was made of defendant's car on defendant's premises, consists solely of his statement that "we opened the trunk of the car and there were six gallons of bootleg whiskey * * *" The witness testified that defendant stated "that the whiskey was his."

There was no testimony that the container or containers did not "bear either a revenue stamp of the federal government or a stamp of any of the county boards of the State of North Carolina." Had there been such testimony, it would have constituted prima facie evidence of the violation of G.S. § 18-48. The General Assembly provided this rule of evidence to facilitate criminal prosecutions in which it is necessary to prove that the liquor is "non-tax-paid."

Thus, the question posed is whether "bootleg whiskey" is sufficient to identify the liquor as "non-tax-paid." We are constrained to hold that it is not. While "bootleg whiskey" implies illicit whiskey, it does so in the sense that the possession, possession for sale, transportation, etc., thereof, under the circumstances, is unlawful, whether tax-paid or nontax-paid. The descriptive terms are not synonymous. Hence, the court cannot take judicial notice that "bootleg whiskey" is "non-tax paid liquor."

The question posed is similar to that passed upon in State v. Wolf, 230 N.C. 267, 52 S.E.2d 920, in which this Court held that the expression "white liquor" was insufficient to identify "``illegal non-tax paid liquors.'"

The result is that defendant's motion for judgment of nonsuit should have been allowed. Hence, other assignments of error need not be discussed.

Reversed.