State v. Welborn

106 S.E.2d 204 (1958) 249 N.C. 268

STATE
v.
Leonard WELBORN.

No. 579.

Supreme Court of North Carolina.

December 10, 1958.

J. Owen Lindley and Stedman Hines, Greensboro, for defendant-appellant.

Atty. Gen. Malcolm B. Seawell and Asst. Atty. Gen. Claude L. Love for the State.

RODMAN, Justice.

Counsel for defendant, presumably in deference to the decisions, State v. Hardy, 209 N.C. 83, 182 S.E. 831; State v. Lowe, 209 N.C. 846, 183 S.E. 749, and State v. Carpenter, 215 N.C. 635, 3 S.E.2d 34, which construe the statute (G.S. § 18-11) defining a dwelling where whisky may be lawfully possessed, said: "Your Honor, we will stipulate that is the whiskey he had in his store."

Defendant, by motion to nonsuit and exceptions to the charge, presents this question: Was possession of tax-paid whisky in his store when not possessed for sale illegal? Unless we overrule a consistent line of decisions, the answer must be in the affirmative. State v. Shinn, 238 N.C. 535, 78 S.E.2d 388; State v. Fuqua, 234 N.C. 168, 66 S.E.2d 667; State v. Barnhardt, 230 N.C. 223, 52 S.E.2d 904; State v. Carpenter, supra; State v. Hardy, supra; State v. Lowe, supra; State v. Briscoe, 194 N.C. 582, 140 S.E. 212; State v. Pierce, 192 N.C. 766, 136 S.E. 121; State v. Knight, 188 N.C. 630, 125 S.E. 406; State v. McAllister, 187 N.C. 400, 121 S.E. 739.

The cases relied on by defendant, State v. Ritchie, 243 N.C. 182, 90 S.E.2d 301; State v. Hill, 236 N.C. 704, 73 S.E.2d 894; State v. Brady, 236 N.C. 295, 72 S.E.2d 675; State v. Suddreth, 223 N.C. 610, 27 S.E.2d 623, determine the legality of possession in one's residence. They hold that such possession is not per se illegal. They do not declare that storage in a place other than a residence is legal.

Defendant committed no crime when he purchased tax-paid whisky from an authorized source and transported it to its destination. G.S. §§ 18-49 and 50. The crime was committed after the transportation was completed and when the whisky found its place of abode in a building declared by statute improper for that purpose. G.S. § 18-11. Possession is illegal, G.S. § 18-2, if not at an authorized place. The Legislature has the right, if it deems wise, to enlarge the class of places where legally acquired and transported whisky may be kept. We possess no such power.

No error.

PARKER, J., not sitting.

HIGGINS, Justice (concurring).

The evidence disclosed the defendant occupied a building consisting of three rooms. The front room contained a small stock of groceries consisting of canned goods, soft drinks, cigars and cigarettes. The middle room "is where he kept a lot of empty bottles he has thrown away, and in the other room he has a bed and table. We went in the back room * * * where the bed was, * * * on the table * * * there was four pints of taxpaid liquor with the seal unbroken and one pint with the seal broken with about one-half of it gone." The defendant offered evidence that he lived in the back room.

In my opinion the evidence offered was insufficient to go to the jury on the charge of unlawful possession upon the ground the possession was in the defendant's private dwelling. However, the defendant's stipulation, entered as a judicial admission before the court, placed the whisky in the defendant's store. The stipulation overrode the evidence and was sufficient to support the conviction.

Some of our cases seem to hold that if a building is occupied in part as a private dwelling, and is used in part for business purposes, that part occupied as a dwelling loses its private character. My view is that if that part of the building used as a private dwelling is entirely cut off and separated by a wall, even though the wall contains a door, its character as a private dwelling is not destroyed. If entirely separated in a manner sufficient to provide privacy where no business is done, the separation may be by a wall, by a floor, by two walls, or by two lots. Many people set aside a room in the home for business purposes. That part not so used is still the private dwelling. The separation for the different purposes and not the size of the building is the test.

Under the law as it is presently written, one has the right to purchase not in excess of one gallon of liquor from an ABC store, provided the taxes due to the United States and to the State of North Carolina have been paid. The purchaser has the right to transport the purchase from the store to his private dwelling, which he occupies as such, and to keep it for the use of himself, his family, and his bona fide guests. I concur in the result because of the stipulation.