There were three counts in the indictment, to the first two of which anol. pros. was entered, and the defendant was tried upon the third only, which charged: "That the said A. V. Emery, on the day and year last aforesaid, at and in the county aforesaid, wilfully and unlawfully did sell and retail unto Lafayette Nash spirituous liquor, by a measure and quantity less than a quart, to wit, by the pint, he, the said A. V. Emery, not then and there having a license to sell and retail spirituous liquors," etc.
The only evidence was that of Lafayette Nash, who testified "that on Monday, a week ago, he bought a cup of corn whiskey, less than a quart, of the defendant in the city of Raleigh, Wake County, and that he paid him fifteen cents for it."
(669) The defendant asked the court to instruct the jury that there was no evidence to show that he had sold the whiskey without a license. The court declined to give the instruction, and the defendant excepted.
The court, among other things, charged the jury that if they were fully satisfied that the defendant sold the whiskey, as stated by the State's witness, and that the defendant had no license to sell, he was guilty under the third count; and if defendant relied upon a license to sell, it was his duty to produce it.
The defendant excepted to that part of the charge that related to the production of the license.
There was a verdict of guilty, and the defendant moved for a new trial:
1. Because of refusal to give the instruction asked for.
2. Because the court erred in instructing the jury as to the duty of the defendant to produce the license.
Motion overruled and defendant excepted.
The defendant then moved in arrest of judgment upon the third count, for that it did not charge any indictable offense in Raleigh Township.
Motion overruled, and defendant excepted. Judgment and appeal. *Page 519 We can see no error in refusing the instruction asked for, nor can we see any error in the charge given by his Honor. The production of the license, if there was one, was a question of evidence. The defendant says, "the State must show that there was no license, because it alleged, and it was necessary for it toallege, that he had none." The contrary has been adjudged and settled by authority and conclusive reasoning. The license, if it (670) exist at all, must be in the possession of the defendant, and ever since the case of the S. v. Morrison, 3 Dev. Law, 299 — more than fifty years — it has been regarded as settled in this State thatproof of the existence of a license to retail must come from the defendant. The clear and satisfactory reasoning of Ruffin, J., in the opinion in that case, by which it was made an exception to the general rule that "he who alleges must prove," has been accepted by the courts, but counsel for the defendant now asks us to overrule that decision, upon the assumption that there was a necessity for it when S. v. Morrison, supra, was tried, which no longer exists, because of the fact that license issued now is a matter of record. So it was when the decision referred to was made, and it has since been recognized in S. v. Evans, 5 Jones, 250, and in S. v. Wilbourne,87 N.C. 529, cited by counsel for defendant, though in the latter caseRuffin, J., says it should be limited as a precedent "strictly to the facts of the case." It can never work a wrong or injury to the accused, and we can see no reason for reversing it now.
This disposes of the exception to his Honor's charge.
We are unable to see from the record upon what ground the motion in arrest of judgment is based, and it was not pressed in this Court. The charge is for retailing unlawfully and without license in the county of Wake, and the evidence sustains the charge. If there is an exception in regard to Raleigh Township it has not been made to appear to us.
There is no error.
Cited: S. v. McDuffie, 107 N.C. 888; S. v. Blankenship, 117 N.C. 810;S. v. Glenn, 118 N.C. 1195; Cook v. Guirkin, 119 N.C. 17; S. v.Holmes, 120 N.C. 576; S. v. Neal, ibid., 621; S. v. Bradley, 132 N.C. 1061;Meredith v. R. R., 137 N.C. 486; S. v. Blackley, 138 N.C. 623; S.v. Connor, 142 N.C. 708; Trading Co. v. R. R., 178 N.C. 180; S. v.Falkner, 182 N.C. 796; S. v. Valley, 187 N.C. 573; Speas v. Bank,188 N.C. 527. *Page 520
(671)