STATE
v.
William Jackson RITCHIE.
No. 506.
Supreme Court of North Carolina.
November 30, 1955.*302 Robert L. Warren, Concord, for defendant appellant.
Wm. B. Rodman, Jr., Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.
WINBORNE, Justice.
What is said by this Court in State v. Brady, 236 N.C. 295, 72 S.E.2d 675, 676, is pertinent to case in hand. Paraphrasing the factual situation there stated, it may be said here: Cabarrus County has not elected to operate county liquor stores under the Alcoholic Beverage Control Act of 1937, G.S. § 18-36 et seq. In consequence, this case is controlled by the Turlington Act of 1923, G.S. § 18-1 et seq., as modified by the provisions of the Alcoholic Beverage Control Act applicable to counties not engaged in operating county liquor stores, citing cases.
*303 Upon similar premises in the Brady case this Court had this to say:
"These propositions are established law in counties which do not operate county liquor stores under the Alcoholic Beverage Control Act of 1937:
"1. Under the relevant section of the Turlington Act, i. e., G.S. § 18-11, as modified by applicable provisions of the Alcoholic Beverage Control Act, i. e., G.S. § 18-49 and G.S. § 18-58, the possession by the accused, even within his private dwelling, of more than one gallon of intoxicating liquor upon which the taxes imposed by law have been paid constitutes prima facie evidence that such liquor is kept for the purpose of being sold where the accused is charged with the commission of that offense by the indictment or warrant. [Citing cases.]
"2. Under the relevant section of the Turlington Act, i. e., G.S. § 18-11, as modified by the applicable provisions of the Alcoholic Beverage Control Act, a person may lawfully have or keep in his private dwelling while the same is occupied and used by him as his dwelling only an unlimited quantity of intoxicating liquor upon which the taxes imposed by law have been paid for use only for the personal consumption of himself, and of his family residing in such dwelling, and of his bona fide guests when entertained by him therein." (Citing cases.)
Bearing in mind these principles, it is noted that in the instant case the trial court has considered and treated the warrant as containing three separate counts, and the record discloses that all of the evidence adduced by the State upon the trial in Superior Court relates to the same intoxicating liquor, on which the taxes have been paid, which defendant possessed in his residence. It is charged that the defendant possessed the liquor unlawfully, that he possessed it for the purpose of sale, and that he transported it unlawfully. But the trial judge allowed the motion of defendant for judgment as of nonsuit as to the third count charging unlawful transportation of intoxicating liquor. It follows that defendant was not guilty of having obtained the liquor unlawfully. Therefore, as in the Brady case, the jury could have drawn only one of these opposing inferences from the evidence: That defendant possessed the liquor for the personal consumption of himself and family and guests, as defined in the statute, or that he had it for the purpose of sale. And in the light of these inferences, the first count in the warrant, without the aid of the second constitutes no criminal offense. In other words, it appears that defendant is properly charged only with the offense of unlawful possession of taxpaid liquor for the purpose of sale. This is the offense charged in the second count. And this Court is of opinion and holds in respect to the second count the evidence is sufficient to take the case to the jury and to support the verdict of guilty.
Therefore, for the error appearing upon the face of the record, the verdict of guilty under the first count must be, and it is set aside and the judgment rendered thereon is arrested and stricken.
As to the judgment on the second count: A court may suspend the execution of its judgment upon prescribed conditions only with defendant's consent, express or implied. While here it is recited in the judgment that "By consent of the defendant in open court * * *" the judgment is suspended on conditions stated, the record shows clearly that there was neither express or implied consent for the appeal entries recite that "To the pronouncement of said judgment defendant excepts in open court and gives notice of appeal to the Supreme Court. Further notice waived. The defendant is allowed statutory time within which to make up and serve case on appeal * * *".
Patently appeal was taken immediately following entry of judgment. Therefore the judgment on the verdict upon the second count is stricken out and the cause remanded for proper judgment. State v. Cole, 241 N.C. 576, 86 S.E.2d 203, and cases *304 cited. See also State v. Eason, 242 N.C. 59, 86 S.E.2d 774; State v. Harvey, 242 N.C. Ill, 86 S.E.2d 793, and State v. Ingram, N.C., 90 S.E.2d 304.
For reason stated: On first countJudgment is arrested; On second countJudgment is stricken and cause remanded for proper judgment.