State v. Watkins

Brown, J.

The following is all the evidence introduced on the trial of this case:

Gr. W. Rushing, witness for the State, testified: “I saw one barrel in the railroad depot at Hallsboro, marked 0. "Watkins. This barrel had whiskey marked on -it. The barrel looked like it would hold about 30 gallons. I do not know what was in the barrel.”

IT. O. Harvel, witness for the State, testified as follows: “I am agent for the Atlantic Coast Line Railroad Company at Hallsboro, N. C. On 5 August, 1912, a barrel containing about 30 gallons, marked ‘0. Watkins/ and also marked on the barrel ‘Whiskey/ was put off the train at Hallsboro, N. 0. Some time after the arrival of this barrel, and while I was agent, some one. came to the railroad office and receipted for this barrel. I do not know whether Oscar Watkins carried the barrel away or not. I do not know who got the barrel. I only know that some one receipted for it in the name of Oscar Watkins. I do not know where the defendant lives. I did not know Oscar Watkins at the time the barrel was. receipted for.”'

0. i. Benton, witness for the State, testified as follows: “I saw a barrel of whiskey, containing about 30 gallons, in the railroad warehouse at Ohadbourn, N. 0., marked ‘0. Watkins/' When I saw the barrel of whiskey in the warehouse it was in bad order and the whiskey was leaking out. I saw some parties catching the whiskey as it was leaking out of the barrel,, drinking it, and others catching it in buckets and carrying it away. The defendant Watkins was not there when I saw it. I do not know what became of. the barrel of whiskey. Oscar Watkins lives at Pine Log, about 5 miles from Ohadbourn and about 8 miles from Hallsboro.”

It is to be observed that the defendant is indicted for selling whiskey to some person to the jurors unknown. While this form of indictment is recognized, yet it is as much incumbent on tbe State to offer evidence tending to prove an actual sale to tbe unknown person as if bis name bad been inserted in tbe indictment. S. v. Dowdy, 145 N. C., 432; S. v. Dunn, 158 N. C., 654; S. v. McIntyre, 139 N. C., 599.

There is no evidence tbat tbe defendant in tbis bill ever-received tbe whiskey, much less sold it. Tbe evidence wholly fails to identify tbis Oscar Watkins with tbe person who received tbe whiskey.

Tbe receipted book was not put in evidence, and there was no attempt to prove tbe defendant’s handwriting, as well as no attempt to prove tbat be ever sold any of it.

Tbis case seems to have been tried as if tbe act of 1913, cb. 44, bad been in effect. Tbat. act creates two new offenses in respect to intoxicating liquors as well as a new rule of evidence contained in section 5; but tbat act went into effect on 1 April, 1913.

Tbis bill was returned in November, 1912, and tbe trial took place and judgment was pronounced in February, 1913. Therefore, tbe act of 1913 can have no bearing upon tbis case, and it must be determined under tbe law in force prior to tbat act.

Nor does tbe act considered by us in S. v. Barrett, 138 N. C., 630, apply. Tbis statute declared tbat tbe possession of more than one quart of whiskey should be prima facie evidence tbat tbe party in whose possession it was found bad it for tbe purpose of sale.

Tbe act applied only to Union County, and there was no such special act in force in Columbus County when tbis offense is alleged to have been committed. His Honor erred in refusing tbe instruction.

New trial.