The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-11-08
Digests of Decisions
Rendered Yesterday.
COMMENT ON LIQUOR
In State vs.. Mcintyre, Judge HOke De-
IiVers Interesting Dicta. Gattis
VS.. kiIgO and Saloon Man
damus Fail 10 Appear
in Conrt.

The Supreme Court handed down
opinions yesterday in nine cases, none
of great importance.
Gattis VS.. Kilgo was expected, but
the decision was not Forthcoming.
Although it was only argued last week
there was some expectation of a de-
cision of the Court in the matter
the Saloon election mandamus in the
case of the Board of Aldermen of the
City of Raleigh, but that also failed
Possibly the most interesting fea-
ture of the days opinions is dicta
of Justice Hoke in the case of State
VS.. Mcintyre, already referred to in
these columns as involving possible
extension of the principle lad down
in the famous liquor case referred to
as the Union County case" The
court does not follow the reasoning
of the lower court in the matter of
the Cumberland County law, arresting
judgment in favor of the defendant,
who was convicted solely of having
in his possession two gallons of whis-
key.
After outlining the reasons for the
opinion of the court in the particu-
lar case Judge Hoke says generally:
1--WE are confirmed in this conclu-
sion by the consideration that there
is grave doubt if it is in the power of
the legislature to make the mere own
ership or possession in given amount
of WhiSkey in itself a crime. The
right to own property is ordinarily
one of the rights regarded as funda-
mental, to be forbidden, forfeited or in
terfered with by the Legislature only
in the assertion of eminent domain
or in the exercise OF the police power.
Only in the rareSt instances can the
police power be called on to regulate
or control the conduct of individuals
in the privacy of their own homes.
or when not involving any relation
ship to others or the public.
ut is true that the Supreme Court
of the United States in Mugher VS.
Kansas, 123 Il. S. 62 and i'm many
cases since that time. has given de-
cided intimation that the police pow
er can lawfully be extended to al
most any phase of the use of spiri-
tous liquors, and that the Legisla-
ture must determine the extent of
such exercise.
"At the same time, no legislation,
SO far as we recall, has yet gone to
the extent of making the mere own
G"Ship or possession of WhtSkey a
crime, except, perhaps, in furth-
erance of State monopoly when i'm
aid of the States revenue. They
have all stopped short of dealing with
private consumption Of whiskey' says
a recent writer on the subject. The
only one We have discovered which
approaches the extent claimed for the
nresent law, was one in the State of
West Virginia, making it crime to
keep in possession spirituous liquors
for another. and this was declared un-
constitutional by the Supreme Court
of that State. State VS.. Gilmore. 33
w. Va, 146."
Digests of Opinions.
Digests of opinions filed yesterday
as follows:
MisenheimeP V. Ritchic. from StanIy.
per curian. affirmed.
State V ThompsCI and State v.
Morton, from StanIy, per curian. no
error-both cases by authority in re
GOrahm, 129 n. G.. 1872 and i'm re
Young. 1877, n. G. 552.
State VS.. William Mcintyre, appellant,
flOm Cumberland. Judgment Ar
rested.
The defendant was indicted under
the law regulating the sale of intoXi-.
eating liquors in Cumberland county.
he having in his possession and under
his control more than two gallons Of
Whiskey at one time with intent to sell
the same. The.-lefendant was indict-
ed under chapter 125 Laws, 1903, and
Ch. 500 Laws of 1906.
Held, 1. Chapter 125, Laws of 1903,
making it unlawful to rectify, manu-
facture. sell or otherwise dispose of
for gain Intoxicating. liquors, etc. con-
tains no provision making it indict-
able to have in possession whiskey
with intent to sell.
2. statute having already clearly
defined the acts made criminal so far
as individuals are concerned and i'm
posing punishment for its violation
which in d subsequent section reads:
That it shall be unlawful for any
person to have in his possession, or
ms or her control, more than two
gallons of Spirituous liquors or more.
than five gallons of malt liquors at
any one time. and the possession Of
greater quantit7'~sha be prima ia
Gle evidence that such person is en-
gagged in the illegal sale of of LIQUOR. is
dealing merely with the administra
tive features of the law and the lat
ter part thereof shall be pPima facie
evidence" gives clear indication that
ii was the only effect contemplated as
the result of the forbidden possession
mentioned-which can only be inter
preted as giving such possession evil
Dental force in the charge of Illegal
sale and not as creating a distinct
and substantive criminal offense.
II E. Lindsay. ct al. VS.. John Nj. Aus
TIN. appellant. from Union. Partial
New Trial.
Action of ejectment to recover two
tracts of land. one of 1-2 and the
other of 35 acres tbe former under