#### STATE v. M. D. TAYLOR.

(Filed 22 August, 1952.)

1. Intoxicating Liquor § 9d—

The direct, unimpeached testimony of an undercover agent for the State Alcoholic Beverage Control Board that he purchased intoxicating liquor from defendant is competent in a prosecution under the Turlington Act, G.S. 18-1, *et seq.,*and defendant’s contention of variance between indictment and proof on the ground that the indictment related to the Turlington Act and the officer’s sole duty related to the enforcement of the State’s Alcoholic Beverage Control Act, G.S. 18-36, *et seq.,*is feckless. The official status of the witness did not render him incompetent to testify as to a violation of the Turlington Act, and further, such officer is authorized to see that all laws relating to the sale and control of alcoholic beverages are observed.

2. Criminal Law § 52b—

Where the State’s evidence is clear, unambiguous and susceptible only to the conclusion of guilt, and defendant offers no evidence, the court may charge the jury that if it finds beyond a reasonable doubt that the evidence offered by the State is true, the burden being upon the State to so satisfy them, then the jury should return a verdict of guilty as charged, otherwise' to return a verdict of not guilty.

3. Criminal Law § 52a (2) —

The failure of the solicitor to subpoena one of the two witnesses present at the time the offense was committed is immaterial.

4. Criminal Law § 531—

A party desiring an instruction that the testimony of a biased witness should be scrutinized must aptly tender written request therefor, and his oral request made at the conclusion of the charge is too late.

5. Criminal Law § 53j—

An instruction that the jury “may” scrutinize the testimony of an interested witness instead of “should” scrutinize such testimony, *held,*not prejudicial. i ■

Appeal by defendant from *Rousseau, J.,*and a jury, February Term, 1952, Eoesyth.

Criminal prosecution upon a bill of indictment charging tbat tbe defendant did transport, deliver, furnish, sell, possess and possess for tbe purpose of sale intoxicating liquor in violation of tbe Prohibition Law.

*131On or about 10 October, 1951, two undercover investigators of tbe State Aleobolie Beverage Control Board were assigned to tbe area including tbe city of 'W’inston-Salem. Shortly after 9 o’clock on tbe evening of 6 December, 1951, while these officers were staying at a motor court in tbe western part of tbe city, one of them called a telephone number and requested that a fifth of whiskey be delivered to tbe motor court. At tbe conclusion of this conversation, both agents went out from tbe motor court to a point on Grove Park Street, where tbe defendant, with another man, drove up in a 1951 black Plymouth automobile. Tbe right front door of tbe automobile was opened and tbe defendant sold one of tbe agents a fifth of tax-paid whiskey at tbe price of $6.00. One agent made tbe purchase while tbe other looked on and both returned to tbe motor court. After tbe liquor was sold, the defendant drove off in tbe direction be was beaded.

Later, on tbe same night, tbe other undercover agent called tbe same telephone number and requested that another fifth of liquor be delivered to Room 505 at tbe motor court. This agent was told to come to tbe same spot where tbe first liquor was purchased and that bis order would be filled in ten minutes. In exactly ten minutes, this agent was at tbe designated point when tbe defendant again drove up, this time alone, in tbe same automobile bearing tbe same license number. Tbe defendant then sold to this agent another fifth of tbe same brand of tax-paid liquor at tbe same price.. Only one of tbe undercover agents was present at tbe last sale. ; .

Of tbe two undercover investigators, only tbe one who made tbe last purchase and who was also present when tbe first purchase was made testified. Both bottles of liquor bore tbe same, brand label and were, without objection, received in evidence. Tbe bottles were not examined by tbe investigators for fingerprints. Tbe car from which tbe liquor was delivered on both occasions bore North Carolina license number R-71721.

A local enforcement officer testified that on tbe day tbe case was tried in tbe Municipal Court in Winston-Salem, tbe defendant gave him an automobile key and be thereupon went to some point in tbe city and obtained a 1951 black 4-door Plymouth automobile bearing 1951 North Carolina license number R-71721.

At tbe close of tbe State’s evidence the defendant demurred and moved for judgment as in case of nonsuit. This motion was denied. Tbe defendant offered no evidence, but renewed bis motion for judgment of dismissal.

There was a verdict of guilty as charged in tbe bill. Judgment was pronounced upon tbe verdict and defendant appealed, assigning errors.

*132*Attorney-General McMullan and Assistant Attorney-General Bruton for the State.*

*Higgins •<& McMichael and Richmond Rucker for defendant, appellant.*

ValeNTINE, J.

Defendant based bis motion for judgment as of non-suit upon the 'theory that there was a fatal variance between the allegations in the bill of indictment and the State's evidence. He strongly argues that the bill of indictment was based upon the Turlington Act, G-.S. 18-1, *et seq.,*and that the proof tended to support a violation of the State Alcoholic Beverage Control Act, G.S. 18-36, *et seq.*The bill of indictment makes no reference to any statute. Defendant urges in support of his contention that the sale of liquor was made to an undercover investigator of the State Alcoholic Beverage Control Board whose duties are confined to the enforcement of the statutory law under which he operates. This argument overlooks the fact that the evidence of a violation of the law is the important thing and not the official status of the witness giving the evidence. As a matter of fact, one who had no connection with any agency of the State could have testified that an unlawful sale of liquor was made and such testimony, unimpeached, would be sufficient to justify a conviction.

In the present case, the State based no part of its case upon a presumption, but upon the physical facts of the transportation, delivery, possession and sale of the intoxicating liquor. Matters relating to the position of the witness with respect to the governmental agency are without effect, except for the purpose of attacking the veracity of the witness. All the evidence tended to show that the defendant on two separate occasions, after nine o’clock at night, possessed, transported and sold a fifth of tax-paid liquor. This established the illegality of the sale and was abundantly sufficient to take the case to the jury and support a verdict. *S. v. Clark,*234 N.C. 192, 66 S.E. 2d 669; *S. v. Marsh,*234 N.C. 101, 66 S.E. 2d 684; *S. v. Ellers,*234 N.C. 42, 65 S.E. 2d 503.

It is and has been, since the enactment of the Turlington Act, a violation of the law in North Carolina to transport, sell, possess, and possess for the purpose of sale intoxicating liquor, except as specified in the Alcoholic Beverage Control Act. The bill of indictment unquestionably is sufficient to support a conviction under the evidence offered by the State. *S. v. Davis,*214 N.C. 787, 1 S.E. 2d 104.

The unlawful liquor transactions engaged in by the defendant under the testimony of the State upon the night in question is condemned both by the Turlington Act and by the Alcoholic Beverage Control Act. *S. v. Barnhardt,*230 N.C. 223, 52 S.E. 2d 904; *S. v. Wilson,*227 N.C. 43, 40 S.E. 2d 449; *S. v. Carpenter,*215 N.C. 635, 3 S.E. 2d 34; *S. v. Davis, supra; S. v. Epps,*213 N.C. 709, 197 S.E. 580; *S. v. Langley,*209 N.C. *133178, 183 S.E. 526. As a matter of fact, all undercover agents of tbe State Alcobolic Beverage Control Board are authorized “to see that all tbe laws relating to tbe sale and control of alcobolic beverages are observed and performed.” G.S. 18-39.

Tbis statutory law furnished full authorization for tbe procedure used by tbe State’s witness and placed upon him tbe duty of enforcing tbe provisions of both tbe Turlington Act and tbe Alcobolic Beverage Control Act. Tbe State’s evidence was clear, unambiguous and susceptible of only one construction. Therefore, it was not error for tbe court to charge tbe jury that if it found beyond a reasonable doubt that tbe evidence offered by tbe State was true, tbe burden being upon tbe State to so satisfy them, then it would be their duty to return a verdict of guilty as charged; otherwise, to return a verdict of not guilty. *S. v. Balter,*229 N.C. 73, 48 S.E. 2d 61; *S. v. Dickens,*215 N.C. 303, 1 S.E. 2d 837; *S. v. Langley, supra.*

Tbe solicitor has tbe duty of developing tbe case for tbe State and be may call any or all of tbe witnesses subpoenaed for tbe prosecution, but bis failure to call a particular witness does not constitute reversible error. *S. v. Harris,*166 N.C. 243, 80 S.E. 1067; *S. v. Smallwood,*75 N.C. 104.

Tbe defendant strongly argues that tbe court committed error in that portion of tbe charge which relates to the evidence of tbe undercover agent by failing to instruct tbe jury to scrutinize bis testimony as that of an interested or biased witness. Tbe defendant made no request in writing for special instructions on tbis point. His oral request- made at tbe conclusion of tbe charge was too late. *S. v. Hicks,*229 N.C. 345, 49 S.E. 2d 639; *S. v. Spencer,*225 N.C. 608, 35 S.E. 2d 887; *S. v. Spillman,*210 N.C. 271, 186 S.E. 322. However, tbe presidingfjudge substantially complied with tbis belated request by saying to the/jury, “Yes, sir, gentlemen, you may scrutinize bis credibility; but if you find what be said is true, and beyond a reasonable doubt, it would be your duty to return a verdict of: ‘Guilty as charged.’ ” *S. v. Love,*229 N.C. 99, 47 S.E. 2d 712.

Tbe use of tbe word “may” instead of “should” in this excerpt from tbe charge is not prejudicial. *Green v. Chrismon,*223 N.C. 724, 28 S.E. 2d 215; *Felton v. Felton,*213 N.C. 194, 195 S.E. 533; *Rector v. Rector,*186 N.C. 618, 120 S.E. 195; *Jones v. Commissioners,*137 N.C. 579, 50 S.E. 291; *Manufacturing Co. v. Brower,*105 N.C. 440, 11 S.E. 313; *Johnston v. Pate,*95 N.C. 70; *Pelletier v. Saunders,*67 N.C. 261.

A careful examination of tbe authorities relied upon by tbe appellant discloses no principle of law which militates against tbe position here stated. On tbe whole record, it appears that the defendant bad a fair trial and that there is no reversible error.

No error.