State v. . Pierce

ClaeksON, J. Tbe defendant introduced no evidence, but at tbe close of the State’s evidence moved for judgment of nonsuit. C. S., 4643. Tbe court below overruled tbe motion. In tbis we think there was no error. On a motion to nonsuit, tbe evidence is to be taken in tbe light most favorable to tbe State, and it is entitled to tbe benefit of every reasonable intendment upon tbe evidence, and every reasonable inference to be drawn therefrom. We think there was more than a scintilla of evidence, and tbe evidence, both direct and circumstantial, amply sufficient to be submitted to tbe jury. S. v. Sigmon, 190 N. C., p. 684. In S. v. Meyers, 190 N. C., p. 239, Varser, J., writing for tbe Court, citing many authorities, says: “Possession usually implies detention or control, or tbe right thereto. Tbe possession may be in one person for another, or in one for several, or in several for another, or for themselves, and others not actually present, or however distant from tbe whiskey itself. Possession is tbe retention or enjoyment of a thing which a man bolds or exercises by himself or by another who keeps or exercises it in bis name. . . . Tbe possession may, within tbis statute, be either actual, or constructive. ... If a man procures another to obtain liquor for him and put it in a given place, and tbe other performs tbis agreement and places tbe liquor, then tbe possession is complete. A person may be in tbe possession of tbe article which be has not at tbe moment about bis person. Tbe Turlington Act ‘shall be liberally construed to tbe end that tbe use of intoxicating liquor as a beverage may be prevented.’ There tbe constructive possession, as well as tbe actual possession, is in tbe contemplation of tbe statute.” Public Laws 1923, chapter 1, known as tbe Conformity or Turlington Act, sec. 2, 3 C. S., 3411(b), says: “No person shall manufacture sell, barter, transport, import, export, deliver, furnish, purchase, or possess any intoxicating liquor except as authorized in tbis act; and all tbe provisions of tbis act shall be liberally construed to tbe end that tbe use of intoxicating liquor as a beverage may be prevented,” etc. Section 10, 3 C. S., 3411(j), is as follows: “Tbe possession of liquor *770 by any person not legally permitted under tbis act to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of iu violation of the provisions of this act. But it shall not be unlawful to possess liquor in one’s private dwelling while the same is occupied and used by him as his dwelling only, provided such liquor is for use only for the personal consumption of the owner thereof, and his family residing in such dwelling, and for his bona fide guests when entertained by him therein.” The defendant occupied and used the rear of the filling station as his private dwelling. The court below, on this aspect, charged the jury as follows: “Prima facie evidence means that evidence which is received and accepted and continued until the contrary is shown, and you gentlemen of the jury will remember the evidence, giving the State of North Carolina a fair and an impartial trial, and giving the defendant at bar a fair and an impartial trial.” This instruction, standing alone, may be subject to some criticism (S. v. Wilkerson, 164 N. C., p. 431), but in this immediate connection the judge charged the jury as follows: “Now the State has the duty of satisfying you beyond a reasonable doubt of the guilt of the defendant. A reasonable doubt is an honest, substantial misgiving generated by insufficient proof, insufficiency which fails to satisfy your reason of the guilt of the accused. A reasonable doubt is not a doubt suggested by ingenuity of counsel or by your own ingenuity not legitimately proven by the testimony. It is not a doubt to permit the defendant to escape the penalty of the law. It is not a possible doubt, an imaginary doubt or a captious doubt, but it is a fair doubt, based upon reason and common sense and growing out of the evidence in the case.” Taking the instruction in its entirety, we think it should be upheld. McDaniel v. R. R., 190 N. C., at p. 475. If he had possession of liquor as disclosed by this record it was prima facie evidence that he had it for sale. If not in his private dwelling, if he had actual constructive possession, whether for sale or not, it is a violation of law. 3 C. S., 3411(b) (j); S. v. McAllister, 187 N. C., 400; S. v. Knight, 188 N. C., 630. It will be noted that section 10 has reference to the liquor “m one’s private dwelling while the same is occupied and used by him as his dwelling only.” Defendant cannot complain of the charge. There was sufficient direct and circumstantial evidence to be submitted to the jury, taking into consideration the testimony of Bizzell, that defendant had possession of liquor — not in his private dwelling. S. v. Bradsher, 188 N. C., 447 ; S. v. Sigmon, supra. The charge of reasonable doubt is substantially that approved in S. v. Steele, 190 N. C., at p. 512. See S. v. Sigmon, supra. The use of *771 “proven by tbe testimony” for tbe words “warranted by tbe testimony,” is a distinction without a difference, to warrant tbe testimony there must be proof. Leaving out tbe words “born of a merciful inclination or disposition” seems to be more favorable to tbe defendant. It emphasizes tbat when warranted by proof merciful inclination or disposition should not supplant law. On tbe entire record we can find no prejudicial or reversible error. No error.