State v. Vance ( 1975 )

VAUGHN, Judge.

Defendant moved to quash the search warrant and suppress the evidence obtained as a result of the search made under authority of the warrant. He does not argue that the affidavit and warrant are facially insufficient. He argues that the affiant misrepresented the fact to the magistrate, and that a sufficient warrant on its face may be rendered invalid by misrepresentations made in the affidavit. U. S. v. Thomas, 489 F. 2d 664 (5th Cir., 1973). The affidavit was executed at 7:45 p.m. and stated that there was reasonable cause to believe that heroin was then on the premises. Defendant did not enter the subject premises until 9:30 p.m. and immediately thereafter the officers executed the search. Defendant appears to argue that the foregoing sequence indicates that the affiant did not have information that the drugs were present at the time of the execution of the affidavit and that the affiant had no intention of searching the premises until defendant arrived, presumably with the drugs. Evidence that defendant brought heroin to the premises about 9:30 p.m. does not compel the conclusion that there was not other heroin on the premises at 7:30 p.m. or that the seized ñeroin was not that brought in by defendant. Moreover, even if the informant’s statement to the affiant was false, there is no indication that the affiant had knowledge of the falsity or acted without good faith in the truthfulness of the informer.

Defendant contends that because of conflicts in the State’s evidence relating to whether the heroin offered in evidence was seized before defendant was arrested or after defendant was placed in jail, the credibility of the State’s case was destroyed, the evidence was unworthy of consideration as a matter of law and the case should have been dismissed. On a motion to dismiss, the State’s evidence is, of course, considered in the light most favorable to the State. It is for the jury to resolve the conflicts in the evidence. When considered in this light the evidence is sufficient to go to the jury. This is not a case where the State’s evidence is inherently incredible because of undisputed facts. See State v. Miller, 270 N.C. 726, 154 S.E. 2d 902.

Without objection by defendant, one of the officers testified that he found syringes and needles in the den, the room where the seven bindles of heroin were discovered. Later, when the State offered these syringes and needles in evidence, defendant objected. Defendant’s assignments of error based on the admission of those items in evidence are overruled.

Defendant’s able counsel has brought forward other assignments of error. All have been carefully considered and are overruled.

We find no prejudicial error.

No error.

Judges Martin and Arnold concur.