State v. . Jones , 213 N.C. 640 ( 1938 )

Barnhill, J.

Tbe defendant excepts to certain portions of tbe charge. These exceptive assignments of error are directed to tbe alleged erroneous statement of contentions and no exception was entered at tbe time. These assignments cannot be sustained.

Tbe only other exceptive assignment of error is directed to tbe refusal of tbe court to grant tbe defendant’s motion as of nonsuit entered at tbe conclusion of tbe State’s evidence, tbe defendant having offered no evidence in rebuttal. In support of this contention tbe defendant insists tbat tbe evidence tended only to show tbat be was tbe legal owner of a store in tbe business district of tbe colored section of Greensboro in wbicb lottery tickets were found and tbat there was no evidence showing that tbe defendant bad anything whatsoever to do with said store other than tbat be was tbe legal owner thereof. Tbat is, tbe defendant contends tbat there is no evidence tending to show tbat tbe defendant was operating said place of business. This contention is not supported by the record. "Witnesses testified: “Tbe defendant Jones was not at bis place of business when I arrived.” “It is called tbe Sweet Shop. He (tbe defendant) sells cigarettes and cigars, candy, cold drinks and shoeshines.” “I, with other officers, went to tbe place of business of tbe defendant.” “It was in Napoleon Jones’ place of business.” “Tbe defendant came into bis place of business less than ten minutes after Mr. Taylor and I arrived.” “Napoleon Jones came into bis place of business about tbe time tbat we got up to tbe front door where officers Murphy and Taylor were.” This evidence was amply sufficient to support a finding tbat tbe defendant was in actual charge of tbe place of business in wbicb lottery tickets were found.

C. S., 4428, after defining tbe crime for tbe commission of wbicb tbe defendant stands indicted, provides : “. . . and tbe mere possession of such tickets shall be prima facie evidence of tbe violation of this section.” Under this section it is not necessary for tbe State to show tbat tbe defendant bad lottery tickets in bis actual possession and upon bis person at tbe time charged. Personal property is in tbe possession of a person whenever it is in bis custody and control and subject to bis disposition. This Court has repeatedly held, in cases involving tbe unlawful possession of intoxicating liquors, tbat where the evidence discloses that liquor was found upon premises owned or in the possession of the defendant and frequented by him in such manner and to such an extent that it is reasonable to conclude that it is probable that he had knowledge of the presence of such property upon his premises, it is sufficient evidence to be submitted to a jury for it to determine whether the defendant in fact was in possession of such property or knowingly permitted it to he and remain upon his premises. Here, others were openly in possession of butter and egg lottery tickets in defendant’s place of business, and two unused books of tickets were found in a box in his showcase and another book was found under a cigar box in the showcase. This evidence is uncontradicted and was amply sufficient to justify the submission of the case to the jury.

The court properly denied defendant’s motion for judgment as of nonsuit. In the trial below we find

No error.