State v. Welch

59 S.E.2d 199 (1950) 232 N.C. 77

STATE
v.
WELCH.

No. 577.

Supreme Court of North Carolina.

May 10, 1950.

Coble Funderburk, Monroe, for defendant-appellant.

Attorney-General Harry McMullan and Assistant Attorney General Ralph Moody for the State.

ERVIN, Justice.

The defendant puts his chief reliance on the appeal upon his claims that the trial court erred in refusing to dismiss the action upon a compulsory nonsuit, and in giving the jury certain instructions in which it directed the jury in specific detail to convict the defendant in case it found beyond a reasonable doubt from the testimony that the defendant knowingly transported two gallons of alcoholic beverages, even though one gallon of such beverages may have belonged to his wife.

The solution of these problems is to be found in the statutes relating to the transportation of intoxicating liquors and alcoholic beverages. These terms are not synonymous; but the broader term "intoxicating liquors," as defined in G.S. § 18-1, includes the more restricted term "alcoholic beverages," as delimited in G. S. § 18-60.

Since Union County has not elected to establish county liquor stores, the Turlington Act of 1923 is in full force in Union County except to the extent of its modification by the Alcoholic Beverage Control Act of 1937. State v. Wilson, 227 N.C. 43, 40 S.E.2d 449.

Section 2 of the Turlington Act specifies that "no person shall * * * transport * * * any intoxicating liquor." G.S. § 18-2. This provision of the Turlington Act has been modified by sections 14 and 22 of the Alcoholic Beverage Control Act of 1937, which are now codified respectively as G.S. §§ 18-49, and 18-58.

G.S. § 18-49 is as follows: "It shall not be unlawful for any person to transport a quantity of alcoholic beverages not in excess of one gallon from a county in North Carolina coming under the provisions of this article to or through another county in North Carolina not coming under the provisions of this article: Provided, said alcoholic beverages are not being transported for the purposes of sale, and provided further that the cap or seal on the container or containers of said alcoholic beverages has not been opened or broken. Nothing contained in this article shall be construed to prevent the transportation through any county not coming under the provisions of this article, of alcoholic beverages in actual course of delivery to any alcoholic beverage control board established in any county coming under the provisions of this article."

G.S. § 18-58 provides that a person may bring into this State for his own personal use not more than one gallon of alcoholic beverage which he has purchased legally outside the State.

It is axiomatic at common law that a crime is not committed if the mind of the person doing the act is innocent. The statutes relating to the unlawful transportation of intoxicating liquor are to be construed in the light of this common law principle, and the existence of guilty knowledge on the part of the accused is to be regarded as essential to criminality, even though it is not required by the statutes in express terms. State v. McLean, 121 N.C. 589, 28 S.E. 140, 42 L.R.A. 721. In consequence, a person transporting liquor is not criminally responsible for so doing under these statutes when he has no knowledge of the nature of the goods transported. Parker v. Commonwealth, 135 Va. 625, 115 S.E. 566; State v. Fishback, 122 Wash. 246, 210 P. 375.

A person violates section 2 of the Turlington Act, i. e., G.S. § 18-2, as modified by sections 14 and 22 of the Alcoholic Beverage Control Act of 1937, i. e., G.S. §§ 18-49, and 18-58, and is guilty of unlawfully transporting intoxicating liquor by reason thereof if he knowingly transports intoxicating liquor for any purpose other than those specified in the Alcoholic Beverage Control Act, or in a quantity in excess of one gallon, unless such liquor is in actual course of delivery to an alcoholic beverage control board established in a county coming under the provisions of the Alcoholic Beverage Control Act. State v. Davis, 214 N.C. 787, 1 S.E.2d 104.

The word "transport" means to carry or convey from one place to another. Alexander v. Atlantic Coast Line R. R., 144 N.C. 93, 56 S.E. 697; Cunard Steamship Co. v. Mellon, 262 U.S. 100, 43 S. Ct. 504, 67 L. Ed. 894, 27 L.R.A. 1306. Hence, a person transports liquor when he carries or conveys it from one place to another on his person, or in some vehicle under his control, or in any other manner. Asher v. State, 194 Ind. 553, 142 N.E. 407, 143 N.E. 513; West v. State, 93 Tex.Cr. 370, 248 S.W. 371; 48 C.J.S., Intoxicating Liquors, § 234; Annotation: 65 A.L.R. 983. This is so even though the liquor belongs to the person who carries or conveys it, and is intended for his personal use. State v. Winston, 194 N.C. 243, 139 S.E. 240. But it is not an essential element of the crime of unlawfully transporting intoxicating liquor that the accused own the liquor, Simpson v. State, 195 Ind. 633, 146 N.E. 747; or that he have any pecuniary interest in it, Szymanski v. State, 93 Tex. Cr. 631, 248 S.W. 380; or that he have the custody of it. Loomis v. U. S., 9 Cir., 61 F.2d 653; 48 C.J.S., Intoxicating Liquors, § 234. This being true, an automobile driver who knowingly carries in his automobile intoxicating liquor belonging to and in the custody of a passenger is guilty of transporting such liquor. Green v. Commonwealth, 195 Ky. 698, 243 S.W. 917; People v. Ninehouse, 227 Mich. 480, 198 N.W. 973; Maloney v. State, 119 Tex. Cr. 273, 45 S.W.2d 216.

The task of applying these legal principles to this case must now be performed. When the evidence is considered in the light most favorable to the State, it is sufficient to warrant these findings by a jury: That an automobile, which the defendant owned and controlled, contained two gallons of alcoholic beverages; that the defendant knew that such quantity of alcoholic beverages was in his automobile; and that with such knowledge the defendant carried or conveyed such quantity of alcoholic beverages from one place to another in his automobile for some purpose other than that of delivering the same to an alcoholic beverage control board in a county coming under the provisions of the Alcoholic Beverage Control Act. This being the case, the testimony is ample to support the conviction of the defendant upon the charge preferred against him, i. e., unlawfully transporting intoxicating liquor in a quantity in excess of one gallon.

This conclusion is inescapable even though it be taken for granted that one of the two gallons of alcoholic beverages involved in this action was owned by the defendant's wife. Our decision in this respect conforms to the view expressed by the trial court in the instructions in which it directed the jury to convict the defendant in case it found beyond a reasonable doubt from the testimony that the defendant knowingly transported two gallons of alcoholic beverages, even though one gallon of such beverages may have belonged to his wife.

To prevent misunderstanding on that score, we note here that no special significance is to be attributed to the fact that the possible owner of one gallon of the alcoholic beverages was the defendant's wife rather than a third person. The trial court did not make the guilt of the defendant to turn in any degree upon any supposition that his wife was acting upon his coercion. We emulate its example, and ignore the presumption which provoked Mr. Bumble's exclamation: "If the law supposes that, the law is an ass."

The defendant insists primarily on this phase of the case that his carriage of the gallon of alcoholic beverages claimed by his wife did not constitute a transportation of such beverages by him within the purview of the relevant statutes, and that in consequence he did not transport in excess of one gallon of alcoholic beverages in a legal sense. We can not accept this contention without giving to the statutory phraseology a distorted meaning at complete variance with the language used. This we are not permitted to do.

The defendant asserts secondarily on this aspect of the controversy that the statutes permit the driver of an automobile to carry or convey more than one gallon of alcoholic beverages in his automobile if he is accompanied by others, and if the maximum quantity of alcoholic beverages owned or possessed by any one occupant of the automobile does not exceed one gallon. We can not put any such construction on the pertinent statutes without reading into them a purpose quite foreign to that expressed by the legislature. This we can not do. It is our province to declare the law, but not to make it.

When all is said, the statutes under review express in clear and unambiguous language the definite legislative intent to prohibit the transportation of more than one gallon of alcoholic beverages under any circumstances by any person other than one engaged in carrying or conveying such beverages to an alcoholic beverage control board in a county coming under the provisions of the Alcoholic Beverage Control Act.

It necessarily follows that the court rightly refused to nonsuit the action, and that its instructions to the jury were correct.

The punishment imposed upon the defendant by the judgment of the court is within the limits authorized by the statute. G.S. § 18-29. This being true, it does not offend Article I, Section 14, of the Constitution, forbidding the infliction of "cruel or unusual punishments." Moreover, the circumstances do not show that the court abused its statutory discretion in pronouncing the sentence. State v. Stansbury, 230 N.C. 589, 55 S.E.2d 185.

The trial and judgment will be upheld; for there is in law

No error.