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State v. Gibbs , 238 N.C. 258 ( 1953 )


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  • 77 S.E.2d 779 (1953)
    238 N.C. 258

    STATE
    v.
    GIBBS.

    No. 6.

    Supreme Court of North Carolina.

    September 23, 1953.

    Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Robert L. Emanuel, Member of Staff, Raleigh, for the State.

    Taylor & Mitchell, Raleigh, for defendant, appellant.

    JOHNSON, Justice.

    The defendant challenges the sufficiency of the evidence to carry the case to the jury on each count over his motions for judgment as of nonsuit. This is the essence of the appeal.

    The evidence relied on by the State may be summarized as follows: The arresting officers found two half-gallon jars of nontax-paid liquor in an old stable building located some 25 or 30 feet from the back door of the defendant's home. The defendant was not at home when the officers reached the premises, but he arrived a few minutes later and was present when the liquor was found. The defendant owned the residence lot, on which the stable is located, and had lived there for several years. The back yard and stable building were partially enclosed by a fence, and the defendant had been seen entering and leaving the rear portions of his property in the vicinity of the stable on various occasions.

    This evidence, showing nontax-paid liquor found within the curtilage of the defendant's home, was sufficient to take the case to the jury on both counts, and the court below properly overruled defendant's motions for judgment as of nonsuit. State v. Hill, 236 N.C. 704, 73 S.E.2d 894; State v. Avery, 236 N.C. 276, 72 S.E.2d 670; State v. Rhodes, 233 N.C. 453, 64 S.E.2d 287; State v. Myers, 190 N.C. 239, 129 S.E. 600. See also State v. Webb, 233 N.C. 382, 64 S.E.2d 268.

    On the second count, the State had the benefit of the prima facie rule created *780 by G.S. § 18-11. The limitation placed upon that statute by State v. Peterson, 226 N.C. 255, 37 S.E.2d 591, and cases therein cited no longer obtains. The limitation was removed by State v. Hill, supra.

    We are not concerned with the probative force of the evidence offered by the defendant in refutation of the State's prima facie case. That was for the jury, and they have resolved the controverted issues of fact against the defendant.

    Other assignments of error brought forward by the defendant are formal and are without merit. The verdict and judgment will be upheld.

    No error.