State v. McLamb

72 S.E.2d 656 (1952)

236 N.C. 287

STATE v. McLAMB.

No. 219.

Supreme Court of North Carolina.

October 8, 1952.

*657 J. R. Barefoot, Benson, E. R. Temple and Joseph H. Levinson, Smithfield, for defendant-appellant.

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Charles G. Powell, Jr., Member of Staff, Raleigh, for the State.

WINBORNE, Justice.

The question here: Is there error in the ruling of the trial court in denying defendant's motions for judgment as of nonsuit on the two counts on which he was convicted?

Taking the evidence offered upon the trial below in the light most favorable to the State, the circumstances on which the State relies are insufficient to support the verdict.

The principles of circumstantial evidence and constructive possession recently re-stated in State v. Webb, 233 N.C. 382, 64 S.E.2d 268, are applicable here. And as there stated, to hold that there is sufficient evidence to support a finding that the defendant had constructive possession of the whiskey found at the still as charged, is conjecture and speculation. Defendant ought not to be convicted on such evidence. Hence his demurrer to the evidence should have been sustained.

Manifestly, the evidence obtained under the search warrant relates to other charges covered by the warrant of October 24, 1951, rather than to the charges for which defendant was on trial in the instant case.

In connection with the use of the term "and/or" in the warrant on which this case is tried, attention is directed to the fact that this Court has said that the use of such term in a warrant "adds nothing to its clarity". State v. Ingle, 214 N.C. 276, 199 S.E. 10, 11. And this Court has held that the term "and/or" has no place in judicial proceedings,pleadings, verdict or judgment. Gibson v. Central Mfrs' Mutual Ins. Co., 232 N.C. 712, 62 S.E.2d 320, and cases cited.

Hence the judgment from which the appeal is taken is hereby reversed.