State v. Glenn

110 S.E.2d 791 (1959)

251 N.C. 156

STATE v. Annie Ray GLENN.

No. 370.

Supreme Court of North Carolina.

November 4, 1959.

Malcolm B. Seawell, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.

Walser & Brinkley, Lexington, for defendant appellant.

WINBORNE, Chief Justice.

This appeal challenges the action of the trial court in overruling her motion for judgment as of nonsuit at the close of all the evidence under provisions of G.S. § 15-173. When so challenged, the evidence is to be taken in the light most favorable to the State. So considered under applicable principles of law, this Court is of opinion and holds that the evidence shown in the record is not sufficient to support a verdict of guilty of the offense charged. State v. Webb, 233 N.C. 382, 64 S.E.2d 268; State v. McLamb, 236 N.C. 287, 72 S.E.2d 656; State v. Wooten, 239 N.C. 117, 79 S.E.2d 254; State v. Harrelson, 245 N.C. 604, 96 S.E.2d 867.

In the Wooten case, supra [239 N.C. 117, 79 S.E.2d 255], opinion by Ervin, J., it is said: "The testimony for the State is ample to show that some person violated the statutes relating to the possession of *793 intoxicating liquor. It leaves to mere conjecture, however, the all-important question whether the culprit was the defendant or somebody else. Since the evidence does not indicate that the defendant had either the actual or the constructive possession of the intoxicating liquor found by the officers, the prosecution should have been involuntarily nonsuited in superior court," citing the Webb and McLamb cases.

In this State it is unlawful for any person to possess any intoxicating liquor for the purpose of sale. G.S. § 18-2.

Defendant is charged with violating this statute. Her plea of not guilty puts in issue every element of the offense charged. State v. Meyers, 190 N.C. 239, 129 S.E. 600; State v. Harvey, 228 N.C. 62, 44 S.E.2d 472; State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349; State v. Webb, supra; State v. Harrelson, supra.

Possession, within the meaning of the above statute, may be either actual or constructive. State v. Lee, 164 N.C. 533, 80 S.E. 405; State v. Meyers, supra; State v. Penry, 220 N.C. 248, 17 S.E.2d 4; State v. Webb, supra; State v. McLamb, supra; State v. Harrelson, supra.

In the Meyers case, supra, it is stated: "If the liquor was within the power of the defendant, in such a sense that he could and did command its use, the possession was as complete within the meaning of the statute as if his possession had been actual." [190 N.C. 239, 129 S.E. 602.]

Concededly there is no evidence that defendant had actual possession of the liquor eight half-gallon jars found buried in the ground as related in statement of case. But the State relies upon circumstantial evidence to support the conviction of defendant on the theory that the circumstances testified to show that defendant had constructive possession of the liquor.

"Evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient foundation for a verdict and should not be left to a jury,"Rodman, J., in State v. Vinson, 63 N.C. 335; State v. Harvey, supra, and cases cited. See also State v. Johnson, 199 N.C. 429, 154 S.E. 730; State v. Boyd, 223 N.C. 79, 25 S.E.2d 456; State v. Murphy, 225 N.C. 115, 33 S.E.2d 588; State v. Webb, supra. These principles of circumstantial evidence and constructive possession are applied in State v. McLamb, supra. See also State v. Harrelson, supra.

In the Murphy case, supra, defendant was charged with highway robbery, and the evidence showed that others had equal opportunity with defendant for taking the money. It is there held that under such circumstances to find that any particular person took the money is to enter the realm of speculation, and that verdicts so found may not stand.

Just so in the case in hand, to hold that there is sufficient evidence to support a finding that the defendant had constructive possession of the liquor, as charged, is conjecture and speculation. She ought not to be convicted on such evidence. Hence the motion of defendant for judgment of nonsuit should have been allowed. See State v. Webb, supra; State v. McLamb, supra; State v. Wooten, supra; State v. Harrelson, supra.

In the light of these principles, applied to the evidence shown in the record of case on appeal, whether the whiskey in the can buried in the ground about four feet right in front of defendant's hog pen on the lands of the Evans Estate, in charge of a member of the police department of Thomasville, belonged to defendant, or was in her possession, is purely speculative and insufficient to support a verdict of guilty of possession of intoxicating liquor for purpose of sale.

Hence this Court, as above stated, holds that the motion for judgment as of nonsuit should have been allowed.

*794 In accordance therewith the judgment from which appeal is taken is

Reversed.

HIGGINS, J., not sitting.