State v. Buchanan ( 1951 )

64 S.E.2d 549 (1951) 233 N.C. 477

STATE
v.
BUCHANAN.

No. 433.

Supreme Court of North Carolina.

April 18, 1951.

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Walter F. Brinkley, Member of Staff, Raleigh, for the State.

Jones & Farmer, Raleigh, for defendant appellant.

WINBORNE, Justice.

Defendant, on this appeal, challenges, in the first instance, the correctness of the action of the trial court in overruling his demurrer to the evidence under provisions of G.S. § 15-173.

In this State G.S. § 18-32 declares it unlawful for any person to have or keep in possession for the purpose of sale, except as otherwise authorized by law, any spirituous liquor, and proof of the possession of more than one gallon of spirituous liquors at any one time, whether in one or more places, shall constitute prima facie evidence of the violation of this section.

Possession, within the meaning of this statute, G.S. § 18-32, may be either actual or constructive. State v. Lee, 164 N.C. 533, 80 S.E. 405; State v. Meyers, 190 N.C. 239, 129 S.E. 600, 602; State v. Penry, 220 N.C. 248, 17 S.E.2d 4; State v. Webb, N. Car., 64 S.E.2d 268.

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."

The defendant here, by his plea of not guilty, put in issue every element of the offense charged. State v. Meyers, supra; 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.

The question therefore arises here as to whether there is evidence sufficient to support a finding by the jury, beyond a reasonable doubt, that defendant had in his possession, actual or constructive, more than one gallon of spirituous liquors. While the record on appeal recites evidence from which the jury might have found otherwise, we are of opinion and hold that the quoted portions of the evidence are sufficient to make out a prima facie case against defendant on the charge of unlawful possession of more than one gallon of spirituous liquors on 24 June, 1950, within the meaning of G.S. § 18-32.

This case is distinguishable in factual situation from the case of State v. Hanford, 212 N.C. 746, 194 S.E. 481, on which defendant relies. It too is distinguishable from State v. Webb, supra.

Other assignments of error have been given due attention and are found to be without merit.

Hence, in the judgment below, we find

No error.