State v. Ledford , 24 N.C. App. 542 ( 1975 )

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211 S.E.2d 532 (1975) 24 N.C. App. 542
STATE of North Carolina
v.
Roy Lee LEDFORD and Howard Mashburn.
No. 7429SC882.
Court of Appeals of North Carolina.
February 5, 1975.
*533 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Zoro Guice, Jr., Raleigh, for the State.

J. H. Burwell, Jr., Rutherfordton, for defendant-appellant Roy Lee Ledford.

Robert L. Harris, Rutherfordton, for defendant-appellant Howard Mashburn.

BROCK, Chief Judge.

By way of their fourth assignment of error, defendants contend that the trial court erred when it denied their motions for nonsuit. The fact that there was no evidence that defendants had control over or knowledge or possession of the burglary tools found under the hood is the crux of their contention.

In State v. Glaze, 24 N.C.App. 60, 210 S.E.2d 124, arising out of these same facts, we upheld the conviction of the driver of the 1971 Maverick in which defendants were passengers. There we held that the State could overcome a motion for nonsuit by presenting evidence which placed the accused within such close juxtaposition to the contraband as to justify the jury's concluding that the contraband was in the accused's possession. Glaze, as the driver of the car, had control of its contents, a fact sufficient to give rise to a rebuttable inference of knowledge and possession sufficient to take the case to the jury.

We decline, however, to apply the same principles to defendants. Taking the evidence in the light most favorable to the State, all that is shown is that defendants were passengers in the vehicle driven by Glaze. There is no evidence that any of the defendants was acting in concert or that they were particeps criminis. In State v. Godwin, 269 N.C. 263, 152 S.E.2d 152, an accused was charged with the possession of burglary tools without lawful excuse when he was stopped while riding in an automobile driven by its owner. When the trunk of the automobile was opened on the following day, various burglary tools were found. After reviewing all the evidence, the court reversed the denial of the accused's motion for nonsuit on the ground that "[t]here [was] no evidence that defendant had any control whatever over either the automobile or the articles in it . .." 269 N.C. at 266, 152 S.E.2d at 154. This Court reached a similar conclusion in State v. Franklin and State v. Hughes, 16 N.C.App. 537, 192 S.E.2d 626, in respect of an accused who was shown to be only a passenger in a stolen automobile.

The question of constructive possession has been considered in other jurisdictions upon similar facts. See generally Annot., 33 A.L.R. 3d 798 (1970). Thus, it has been held that if tools are deposited in some place mutually agreed upon by implication of the facts, and to which any number of persons can resort, then a court could find that all the persons had constructive possession of the tools. People v. Birnbaum, 208 A.D. 476, 203 N.Y.S. 697 (1924). In a case from another jurisdiction involving an automobile, defendant-driver and two occupants of a car were stopped, and the car was found to contain burglary tools. The defendant contended that the tools were owned by and were in the possession of one of the passengers. However, the court found that ownership was immaterial and possession unnecessary since two persons could have constructive possession or one could have actual possession and the other constructive possession, where both have power of control and intent to control jointly. Phillips v. State, 154 Neb. 790, 49 N.W.2d 698 (1951). The offense of possessing implements of housebreaking does not require the proof of "intent" in North Carolina. State v. Vick, 213 N.C. 235, 195 S.E. 779. Thus, we believe that the State need not always prove an actual possession, but may show constructive possession by circumstantial *534 evidence. Compare Johnson v. State, 246 Miss. 182, 145 So. 2d 156, appeal dismissed and cert. denied, 372 U.S. 702, 83 S. Ct. 1018, 10 L. Ed. 2d 125 with Sullivan v. State, 254 So. 2d 762 (Miss.1971).

The State, in the case at bar, has failed to show anything other than the fact that defendants were mere passengers in the vehicle driven by Glaze. Although the evidence raises a suspicion of defendants' guilt, this is not enough. Defendants' motions for nonsuit should have been granted.

Reversed.

BRITT and CLARK, JJ., concur.