State v. Love

72 S.E.2d 737 (1952)

236 N.C. 344

STATE v. LOVE.

No. 292.

Supreme Court of North Carolina.

October 29, 1952.

*738 Atty. Gen. Harry McMullan, Asst. Atty. Gen. T. W. Bruton, and Edward B. Hipp, Member of Staff, Raleigh, for the State.

Trivette, Holshouser & Mitchell, Boone, for defendant appellant.

VALENTINE, Justice.

The evidence was insufficient to fix the defendant with the ownership or possession of the eight pints of liquor found by the officers in the rear baggage compartment. The bus driver did not see the defendant open the compartment, did not see him place anything in the compartment, and could not identify the bag as the one he had seen in the possession of the defendant. Evidence which does no more than raise a strong suspicion is not sufficient. State v. Carter, 204 N.C. 304, 168 S.E. 204; State v. Watts, 224 N.C. 771, 32 S.E.2d 348; State v. Kirkman, 224 N.C. 778, 32 S.E.2d 328; State v. Murphy, 225 N.C. 115, 33 S.E.2d 588; State v. Heglar, 225 N.C. 220, 34 S.E.2d 76. Substantial evidence, more than a scintilla, is required to create a case for the jury in a criminal prosecution.

It should be noted that the trial judge withheld from the jury the count in the bill charging the defendant with the unlawful possession of liquors for the purpose of sale. This action by the court had the effect of a directed verdict of not guilty upon that count. This principle has been applied many times in cases where the jury finds a defendant guilty on one count and says nothing concerning other counts in the indictment. Such a verdict amounts to an acquittal upon the counts not referred to. *739 State v. Taylor, 84 N.C. 773; State v. Fisher, 162 N.C. 550, 77 S.E. 121; State v. Hampton, 210 N.C. 283, 186 S.E. 251; State v. Choate, 228 N.C. 491, 46 S.E.2d 476.

This leaves for consideration only the question of whether it is a violation of the law for a person to purchase not more than one gallon of whiskey from a liquor store in a county that has brought itself under the provisions of the Alcoholic Beverage Control Act and to transport the same, with seals unbroken, into a county that has not elected to come under the provisions of said Act.

G.S. § 18-49 provides: "It shall not be unlawful for any person to transport a quantity of alcoholic beverages not in excess of one gallon from a county in North Carolina coming under the provisions of this article to or through another county in North Carolina not coming under the provisions of this article: Provided, said alcoholic beverages are not being transported for the purposes of sale, and provided further that the cap or seal on the container or containers of said alcoholic beverages has not been opened or broken."

So then, if the defendant purchased eight pints or one gallon of intoxicating liquor at an ABC store in Newton and transported the same with seals unbroken to Boone, even though the town of Boone is located in a non-conforming county, he was within his rights under G.S. § 18-49, unless the liquor was transported for the purpose of sale, and the last question is resolved in favor of the defendant by the action of the court in withholding the first count in the bill from the consideration of the jury. Therefore, it cannot be properly said that the defendant possessed and transported the liquor in violation of G.S. § 18-49.

The defendant also appealed from the order of the court activating a prior suspended sentence upon the finding that the verdict and judgment in this case constituted a violation of the terms of the suspension. It appears that defendant's point is well taken.

The propriety of executing a suspended sentence ordinarily is a matter addressed to the discretion of the presiding judge. However, there must be a finding that the defendant has violated one or more of the conditions upon which the sentence was suspended, and that finding must be based upon competent evidence. The State in this prosecution has failed to sustain its claim that the defendant has violated a provision of our prohibition laws. The presiding judge was, therefore, without authority to use the same evidence as the basis of a finding that the defendant had breached a condition of his suspended sentence. State v. Stallings, 234 N.C. 265, 66 S.E.2d 822; State v. Robinson, 232 N.C. 418, 61 S.E.2d 106.

It follows that the judgment and the order of the court below must be

Reversed.