State v. Leach ( 1968 )

158 S.E.2d 782 (1968) 272 N.C. 733

STATE of North Carolina
v.
Craven LEACH.

No. 510.

Supreme Court of North Carolina.

February 2, 1968.

Atty. Gen. T. W. Bruton and Staff Atty. Ralph A. White, Jr., Raleigh, for the State.

Carl C. Churchill, Jr., Raleigh, for defendant.

PER CURIAM.

Defendant contends that the trial court erred in admitting into evidence the nontax-paid liquor and the testimony concerning the finding and seizing of the liquor.

"In State v. Coffey, 255 N.C. 293, 121 S.E.2d 736, the Court, after quoting the second sentence of G.S. 15-27.1, said:

"`To render evidence incompetent under the foregoing section, it must have been obtained (1) "in the course of * * * search," (2) "under conditions requiring a search warrant," and (3) without a legal search warrant. The purpose of this and similar enactments (G.S. 15-27) was "to change the law of evidence in North Carolina, and not the substantive law as to what constitutes legal or illegal search." Therefore a search that was legal without a warrant before these enactments is still legal, and evidence so obtained still competent. 30 N.C.Law Review 421. It will be noted that the statutes use the phrase "under conditions requiring a search warrant." No search warrant is required where the officer "sees or has absolute personal knowledge" that there is intoxicating liquor in an automobile. * * *'" State v. Stevens, 264 N.C. 737, 142 S.E.2d 588. See also State v. Bell, 270 N.C. 25, 153 S.E.2d 741.

In the case of State v. Giles, 254 N.C. 499, 119 S.E.2d 394, officers were pursuing a speeding automobile in the nighttime. After apprehending defendant, who had stopped the car and fled on foot, they shone a light in the back of the car and saw cases of liquor between the back seat and the "boot." The Court, holding that the officers had the right to seize the liquor without a warrant and that the evidence obtained thereby was competent, stated:

"`Where no search is required, the constitutional guaranty is not applicable. The guaranty applies only in those instances where the seizure is assisted by a necessary search. It does not prohibit a seizure without a warrant where there is no need of a search, and where the contraband subject matter is fully disclosed and open to the eye and hand.'"

In the instant case, upon objection to admission of the nontax-paid liquor and the evidence relating thereto, the trial court conducted a lengthy voir dire examination, found facts, and denied the motion to suppress. This was proper, as the officer saw and had absolute personal knowledge that there was intoxicating liquor in the automobile, and no search warrant was required to make the search and seizure legal.

The trial judge correctly denied defendant's motions for nonsuit.

"Possession of nontax-paid whiskey in any quantity anywhere in the State is unlawful. G.S. § 18-48. State v. Barnhardt, 230 N.C. 223, 52 S.E.2d 904; State v. Parker, 234 N.C. 236, 66 S.E.2d 907. And possession within the meaning of the statute, may be either actual or constructive. * * *" State v. Brown, 238 N.C. 260, 77 S.E.2d 627.

The evidence here was sufficient to carry the case to the jury on the question of constructive possession of nontax-paid whiskey and to support the verdict of the jury.

The defendant assigned numerous errors to the charge of the court. However, reading the charge contextually, we find no reasonable cause to believe that the jury was misinformed or misled by the manner in which the law of the case was presented to the jury. State v. Taft, 256 N.C. 441, 124 S.E.2d 169.

In the trial below we find no error sufficiently prejudicial to warrant a new trial.

No error.