State v. . Hicks , 179 N.C. 733 ( 1920 )

An indictment is sufficient which simply charges the unlawful and willful sale of vinous liquors without naming the person to whom sold. Laws 1913, ch. 44, sec. 6; S. v. Brown, 170 N.C. 714, or without negativing the conditions under which it may be lawfully sold, S. v. Moore,166 N.C. 284. The indictment in this case, therefore, omitting surplusage, charges the offense of the unlawful sale of wine. The proviso, in sec. 3, ch. 35, Laws 1911 — "this act shall not apply to the sale of domestic wines when sold in a quantity of not less than 2 1/2 gallons, in sealed packages or crated, on the premises where manufactured," is a matter of defense, which need not be set out in the indictment, and must be shown in proof by the defendant as a matter of defense. S. v. Wainscott,169 N.C. 379, citing S. v. Moore, supra, where the matter is fully discussed; S. v. Hicks, 174 N.C. 802.

The indictment charges that the sale was in Sampson County, and that it was made in August, 1919, but time was not of the essence of the offense,S. v. Jones, 80 N.C. 415, and if it had not appeared that the sale took place in Sampson objection could only be taken by plea in abatement. S. v.Holder, 133 N.C. 709, both cases cited in S. v. Burton, 138 N.C. 576, which quotes many authorities and states that they are uniform.

Leon Pigford testified: "Some time in September, 1919, I went to the defendant's house and paid him at the rate of four dollars per gallon for what he called wine. He measured out two gallons and put it in my jug, and then he put something else in there amounting to about a half gallon, and I don't know what this was. He then stopped the jug up and handed it to me, and I carried it away from his house, and the jug was not sealed or crated. He stated that he did not open or drink any of the contents of the jug on defendant's premises. That he really did not know what the stuff was. That he saw some vessels while at defendant's house, that were stained and appeared to witness as though blackberries or dewberries had been mashed in these vessels."

The defendant introduced no evidence. There was no evidence that the wine was of the defendant's own manufacture, which it was incumbent upon the defendant to prove. The uncontradicted testimony was that the jug "was not sealed or crated." The judge, therefore, properly refused to give judgment of nonsuit.

No error.