State v. Fuqua ( 1951 )

66 S.E.2d 667 (1951) 234 N.C. 168

STATE
v.
FUQUA.

No. 2.

Supreme Court of North Carolina.

September 19, 1951.

Harry M. McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Robert B. Broughton, Member of Staff, Raleigh, for the State.

P. W. Glidewell, Sr., Reidsville, for defendant, appellant.

ERVIN, Justice.

The defendant does not question the propriety of the admission of any of the evidence of the State's witness, Deputy Sheriff Fowlkes. In consequence, the testimony as to reports to law enforcement officers concerning the activities of the accused is governed by the rule which prevails in this jurisdiction that where hearsay is admitted without objection, it may be considered with the other evidence and given any evidentiary value which it may possess. Maley v. Thomasville Furniture Co., 214 N.C. 589, 200 S.E. 438.

The solitary assignment of error made by the defendant is that the trial judge erred in refusing to dismiss the action upon a compulsory nonsuit. G.S. 15-173.

Inasmuch as the criminal laws of North Carolina have no force beyond the borders of the State and can not apply to any intoxicating liquor which may have been cached at the barn in the Commonwealth of Virginia, the validity of the conviction of the defendant necessarily hinges on the sufficiency of the State's testimony to establish these two propositions: (1) That the defendant possessed the intoxicating liquor contained in the cup found in his store; and (2) that the defendant's possession of such intoxicating liquor was illegal.

An accused has possession of intoxicating liquor within the meaning of the law when he has both the power and the intent to control its disposition or use. The requisite power to control may reside in the accused acting alone or in combination with others. State v. Meyers, 190 N.C. 239, 129 S.E. 600.

This being true, the testimony offered by the State at the trial justifies the inference that the defendant had possession of the intoxicating liquor in the cup; for such evidence tends to show that the defendant, acting either alone or in combination with his servant, "Big Head" Ware, had both the power and the intent to control the disposition or use of such liquor.

This brings us to the final inquiry whether the testimony is sufficient to sustain an additional inference that the defendant's possession of the intoxicating liquor in the cup was illegal.

Caswell County has not elected to operate county liquor stores under the Alcoholic Beverage Control Act of 1937. Hence, it is unlawful for any person to possess any intoxicating liquor in Caswell County in any manner or in any place or for any purpose not sanctioned by the Turlington Act of 1923, or by the Provisions of the Alcoholic Beverage Control Act of 1937 applicable to counties not engaged in operating county liquor stores. State v. Barnhardt, 230 N.C. 223, 52 S.E.2d 904; State v. Davis, 214 N.C. 787, 1 S.E.2d 104.

The evidence presented by the State indicates that the defendant possessed the intoxicating liquor in the cup at his store so that it might be put to use as a beverage at that place. Possession of intoxicating liquor in such a manner and at such a place for such a purpose is not sanctioned by any relevant provision of the Turlington Act or the Alcoholic Beverage Control Act. General Statutes, sections 18-2, 18-11, 18-49, 18-58; Chapter 457 of the Session Laws of 1945. For this reason, the testimony warrants the conclusion that the defendant illegally possessed the intoxicating liquor in question.

No error.

VALENTINE, J., took no part in the consideration or decision of this case.