State v. Ferguson

78 S.E.2d 911 (1953) 238 N.C. 656

STATE
v.
FERGUSON et al.

No. 508.

Supreme Court of North Carolina.

November 25, 1953.

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Robert L. Emanuel, Member of the Staff, Raleigh, for the State.

P. H. Bell, Plymouth, and Charles V. Bell, Charlotte, for defendants-appellants.

JOHNSON, Justice.

The defendants' first exception challenges the refusal of the court to grant their motion to suppress the evidence because it was obtained without a search warrant. The exception is untenable.

G.S. § 18-6 provides, in so far as is material here: "* * * that nothing in this section shall be construed to authorize any officer to search any automobile or other vehicle or baggage of any person without a search warrant duly issued, except where the officer sees or has absolute personal knowledge that there is intoxicating liquor in such vehicle or baggage." (Italics added.)

The uncontradicted evidence here is that officer Moody stopped the car to make a routine check of the operator's driver's license. Following this, the officer saw and had absolute personal knowledge that there was intoxicating liquor in the automobile. This, by virtue of the express language of the statute, G.S. § 18-6, dispensed with the necessity of a search warrant.

We have not overlooked the provisions of Chapter 644, Session Laws of 1951, now codified as a proviso to G.S. § 15-27. The pertinent part of this statute is as follows: "* * * Provided, no facts discovered or evidence obtained without a legal search warrant in the course of any search, made under conditions requiring the issuance of a search warrant, shall be competent as evidence in the trial of any action." (Italics added.)

It thus appears that this statute, G.S. § 15-27, by its express terms contemplates situations in which a search warrant is not necessary to conduct a legal search. Such a situation is presented by the express provisions of G.S. § 18-6 where, as here, "the officer sees or has absolute personal knowledge" that there is intoxicating liquor in an automobile under investigation.

It necessarily follows that the defendants' exception based on refusal of the court to suppress the evidence must be overruled. Decision here reached is supported by State v. Harper, 236 N.C. 371, 72 S.E.2d 871, and cases there cited.

The defendants' remaining exception challenges the sufficiency of the evidence to carry the case to the jury over the defendants' separate motions for judgment as of nonsuit.

As to the defendant James K. Alexander, the driver, and the defendant Nellie May Ferguson, who owned the automobile, the exception is untenable under application of the principles explained and applied in this line of decisions: State v. Harper, supra; State v. Elliott, 232 N.C. 377, 61 S.E.2d 93; State v. Meyers, 190 N.C. 239, 129 S.E. 600. See also: State v. Brown, 238 N.C. 260, 77 S.E.2d 627; State v. Gibbs, 238 N.C. 258, 77 S.E.2d 779; State v. Welch, 232 N.C. 77, 59 S.E.2d 199; State v. Merritt, 231 N.C. 59, 55 S.E.2d 804; State v. Epps, 213 N.C. 709, 197 S.E. 580; State v. Norris, 206 N.C. 191, 173 S.E. 14.

However, we are constrained to the view that the evidence does not make out a prima facie case against Pringler Ferguson. The evidence is silent in respect to when, where, or under what circumstances Pringler Ferguson entered the car. Nothing is shown respecting his or her relationship or association with the other occupants of the car—it does not even appear whether Pringler Ferguson is male or female. On this record he or she was a mere passenger in the automobile. That is not enough. To hold a mere passenger, knowledge of the presence in the automobile of contraband whiskey is insufficient. State v. Meyers, supra, 190 N.C. 239, 129 S.E. 600. See also State v. Ham, 238 N.C. 94, 76 S.E.2d 346. The evidence must be sufficient to support an inference of some form of control, joint or otherwise, over the automobile or the liquor. State v. Meyers, supra; 48 C.J.S., Intoxicating Liquors, §§ 222(b), 281, 346 and 376. There is no evidence that Pringler Ferguson had any control whatsoever over either the liquor or the automobile. The evidence does not support the hypothesis of joint possession of the liquor. See State v. Lee, 164 N.C. 533, 80 S.E. 405.

The results, then, are:

As to the defendant Pringler Ferguson: Reversed.

As to the other defendants: No error.