State v. Wooten , 239 N.C. 117 ( 1953 )

79 S.E.2d 254 (1953) 239 N.C. 117

STATE
v.
WOOTEN.

No. 584.

Supreme Court of North Carolina.

December 16, 1953.

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Charles G. Powell, Jr., Member of Atty. Gen. Staff, for the State, Raleigh.

Powell & Powell, Whiteville, for the defendant, appellant.

ERVIN, Justice.

The only assignments of error requiring consideration are those based upon the disallowances of the motions of the defendant for compulsory nonsuits on both counts.

The testimony for the State is ample to show that some person violated the statutes relating to the possession of intoxicating liquor. It leaves to mere conjecture, however, the all-important question whether the culprit was the defendant or somebody else. Since the evidence does not indicate that the defendant had either the actual or the constructive possession of the intoxicating liquor found by the officers, the prosecution should have been involuntarily nonsuited in the superior court. State v. McLamb, 236 N.C. 287, 72 S.E.2d 656; State v. Webb, 233 N.C. 382, 64 S.E.2d 268.

The convictions and sentences in the superior court are vacated and reversed, and the motions of the defendant for compulsory nonsuits on both counts are sustained on this appeal. Under G.S. § 15-173, these rulings have the force and effect of verdicts of not guilty on both counts. State v. Palmer, 230 N.C. 205, 52 S.E.2d 908.

Reversed.