State v. Summers

189 S.E.2d 807 (1972)

STATE of North Carolina
v.
Andrew Kent SUMMERS.

No. 7226SC437.

Court of Appeals of North Carolina.

July 12, 1972. Certiorari Denied August 31, 1972.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

Charles B. Merryman, Jr., Charlotte, for defendant appellant.

Certiorari Denied by Supreme Court August 31, 1972.

PARKER, Judge.

There was no evidence of actual possession and the question presented is whether there was sufficient evidence of constructive possession to warrant submitting the case to the jury. We think there was.

An accused has possession of contraband material within the meaning of the law when he has both the power and intent to control its disposition or use. "Where such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession." State v. Harvey, 281 N.C. 1, 187 S.E.2d 706. Here, the evidence was sufficient to permit the jury to find that the backyard where the marihuana was found was under defendant's control. There was a chain link fence around the backyard and a large dog was in the yard. The marihuana was found at a point in the yard "practically up against the house." In State v. Spencer, 281 N.C. 121, 187 S.E.2d 779, the State's evidence was held sufficient to support a jury finding that areas more remote from the accused's living quarters than here shown were under his control.

We hold that defendant's motions to dismiss were properly overruled. Defendant's remaining assignment of error, directed to admission of the testimony of the clerk of the City Water Department, is without merit.

No error.

VAUGHN and GRAHAM, JJ., concur.