State v. Shinn , 238 N.C. 535 ( 1953 )

78 S.E.2d 388 (1953) 238 N.C. 535

STATE
v.
SHINN.

No. 361.

Supreme Court of North Carolina.

November 4, 1953.

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

B. W. Blackwelder, Concord, Ernest R. Alexander, Kannapolis, R. Furman James, and Clyde L. Propst, Jr., Concord, for appellant.

DENNY, Justice.

The defendant excepts to and assigns as error the refusal of the trial judge to permit him on cross-examination of the State's witnesses, to show that others who lived in the immediate vicinity of the defendant's home were known to deal in liquor. It is argued that since the State did not prove that the liquor found outside of the defendant's home or any part thereof was on his premises, the excluded evidence "might well point with equal gravity to the defendant's innocence."

Evidence which can have no effect except to cast suspicion upon another or to raise a mere conjectural inference that the crime may have been committed by another (or as in this case that some one else may have been responsible for the presence of some of the liquor seized), is not admissible. 22 C.J.S. Criminal Law, § 622, at page 951; State v. Beverly, 88 N.C. 632; State v. Gee, 92 N.C. 756; State v. Smarr, 121 N.C. 669, 28 S.E. 549; State v. Smith, 211 N.C. 93, 189 S.E. 175; State v. Howie, 213 N.C. 782, 197 S.E. 611. These exceptions are without merit.

The defendant also excepts to the following portions of his Honor's charge to the jury:

"Under the law you are permitted to have in your possession or in your home one gallon or eight pints of tax-paid liquor, and the Court charges you that if you find from the evidence in this case and beyond a reasonable doubt, the burden being upon the State so to satisfy you that the defendant had in excess of one gallon of liquor in his home or in his possession at any one time upon his premises, and if you so find, whether tax-paid or nontax-paid, it would be your duty to return a verdict of guilty of the unlawful possession of intoxicating liquor. * * *

"And so if you find from the evidence in this case and beyond a reasonable doubt, the burden being upon the State so to satisfy you that the defendant had in his possession at the time and place in question, * * * in excess of one gallon of tax-paid liquor, and you so find from the evidence beyond a reasonable doubt, that is in his possession and upon his premises, and you so find from the evidence and beyond a reasonable doubt, the burden being upon the State to so satisfy you, it would be your duty to return a verdict of guilty of unlawful possession of intoxicating liquor."

The above charge was clearly erroneous with respect to the amount of tax-paid liquor a person may lawfully have or keep in his private dwelling while the same is occupied and used by him exclusively as his dwelling, when such liquor is for his personal consumption, the consumption of the members of his family residing in such dwelling, or for his bona fide guests when entertained therein by him. State v. Brady, 236 N.C. 295, 72 S.E.2d 675; State v. Barnhardt, 230 N.C. 223, 52 S.E.2d 904; State v. Hammond, 188 N.C. 602, 125 S.E. 402. Even so, the uncontradicted evidence introduced by the State in the trial below was to the effect that only 7½ pints of tax-paid liquor were found in the home of the defendant; and the trial judge charged the jury that a person is entitled to have in his home one gallon or eight pints of tax-paid liquor, provided he does not have it for the purpose of sale. Therefore, since the defendant was not convicted of having any liquor in his possession for the purpose of sale, we cannot see how he could have been prejudiced by the charge with respect to the 7½ pints of liquor found in his home.

The other aspect of the charge, to which the defendant complains, was, in fact, favorable to him. It was not necessary for the jury to find that the defendant had in excess of one gallon of tax-paid liquor in his possession or upon his premises, that is, outside of his house in order for him to be guilty of the unlawful possession thereof. The defendant was guilty of the unlawful possession of intoxicating liquor if he was in the actual or constructive possession of any of the tax-paid or nontax-paid liquor found outside of his home unless it was tax-paid liquor which was being legally transported to his home for the purposes heretofore pointed out. State v. Barnhardt, supra; State v. McAllister, 187 N.C. 400, 121 S.E. 739. Certainly by no stretch of the imagination can it be logically argued that placing the ten pints of tax-paid liquor in the woods, as described in the State's evidence, constituted an act of legal transportation. Furthermore, if the defendant placed the liquor in the woods near his home, as the State's evidence tends to show, it was in his possession at least constructively, whether he placed it on his own property or that of another.

It is clear that if the jury followed the instructions given, it could not have found the defendant guilty of the unlawful possession of intoxicating liquors without finding that he was in possession of some of the liquor which was found outside of his home.

In our opinion the errors pointed out by the defendant were not prejudicial but harmless.

In the trial below we find no prejudicial error.

No error.