State v. . Hanford ( 1938 )

CONNOR, J.

On 3 July, 1937, on tbe complaint of a police officer of Alamance County, wbicb was duly verified, a justice of tbe peace of said county issued a search warrant by wbicb tbe said officer was authorized to search tbe premises of one Lacey Scott, located on a public road, near tbe town of Burlington, in said county, for intoxicating liquor alleged to be in tbe possession of tbe said Lacey Scott on said premises. After tbe said warrant bad been issued, and before it was served, tbe officer, without notice to tbe justice of tbe peace and without bis authority, inserted in both tbe complaint and tbe warrant tbe name of tbe defendant Marvin Hanford. Tbe name of Lacey Scott, wbicb appeared in tbe complaint and in tbe warrant when tbe warrant was issued by tbe justice of tbe peace, was not erased from either tbe complaint or tbe warrant.

Tbe officer went to tbe borne of tbe defendant Marvin Hanford, and after advising him and Lacey Scott, both of whom were at defendant’s borne, that be bad tbe warrant, authorizing him to search their premises, tbe officer proceeded to search tbe bouse of tbe defendant Marvin Han-ford, and a room in said bouse, wbicb was occupied by Lacey Scott.

In a back room in defendant’s bouse tbe officer found fifteen gallons of whiskey and twenty empty cases. This room was occupied by Lacey Scott, to whom the defendant Marvin Hanford bad rented the room. Tbe doors to tbe room were closed, but were not locked, at tbe time of tbe search. Both Lacey Scott and tbe defendant Marvin Hanford told tbe officer that tbe whiskey was tbe property of Lacey Scott. There was no evidence tending to show that tbe defendant Marvin Hanford bad any control over tbe whiskey found in Lacey Scott’s room, or that be knew that tbe whiskey was in tbe room. In tbe absence of such evidence, there was error in tbe refusal of tbe court to allow defendant’s motion for judgment dismissing tbe action as of nonsuit.

There was no evidence tending to show that tbe officer searched tbe premises of tbe defendant Marvin Hanford, under tbe search warrant in bis possession at tbe time be went to defendant’s home. He searched only tbe premises of Lacey Scott, as be was authorized to do under a valid search warrant. Tbe evidence tending to show tbe results of such search was not incompetent under tbe provisions of section 6% of chapter 339, Public Laws of North Carolina, 1937. Tbe evidence was competent, but not sufficient to show that tbe whiskey found in tbe room wbicb tbe defendant bad rented to Lacey Scott was in tbe possession of the defendant.

Tbe action is remanded to tbe Superior Court of Alamance County for judgment in accordance with this opinion. C. S., 4643. Tbe judgment is

Eeversed.