State v. . Foster

146 S.E. 69, 196 N.C. 431, 1929 N.C. LEXIS 3

• Court: Supreme Court of North Carolina
• Decided: January 2, 1929
• Status: Published

Opinion

BbogdeN, J.

Tbe following instruction was given tbe jury: “Tbe court instructs you tbat tbe defendant being there in possession of tbat bouse is a presumption tbat be was in possession of tbe whole building. Until tbat presumption is rebutted or removed tbat presumption is against him. The State having satisfied you beyond a reasonable doubt tbat be was in possession of tbat store room, then tbe presumption is tbat be was in possession of tbe whole building. Tbe State does not have to prove negative testimony, does not have to prove tbat somebody else owns the basement or has charge of it, but tbe law presumes tbat be, being in possession of tbe store would be in possession of tbe entire building.”

Tbe question of law presented by tbe foregoing instruction is this: “Does the law presume tbat tbe lease of a store room necessarily includes tbe basement and other portions of tbe building?”

It is not necessary in order to decide this case to ramble in tbe legal field of presumptions. There is in tbe North Carolina Law Review of June, 1927, an interesting and instructive article on this subject. Dean McCormick, of tbe University Law School, tbe author, declares: “One ventures tbe assertion tbat ‘presumption’ is tbe slipperiest member of tbe family of legal terms, except its first cousin, ‘burden of proof.’ A Missouri lawyer said tbat presumptions were ‘bats of tbe law flitting in tbe twilight, but disappearing in tbe sunshine of actual facts.’ ”

Tbe law does not presume tbe terms of a lease, unless, of course, tbe lease is made under statutory authority and purports to comply therewith. Tbe general principle established by tbe decisions of tbe courts is to tbe effect tbat a lease covers tbe property actually described therein, together with such other property as may be necessary for tbe beneficial use and enjoyment of tbe property leased. 36 C. J., 29. Florgus Realty Corporation v. Reynolds, 187 N. Y. S., 188; Goldsmith v. Traveler Shoe Co., 109 N. E., 394.

Tbe evidence does not disclose tbat the defendant was in either actual or constructive possession of tbe basement of said store, nor does it’ appear what tbe terms of tbe lease were. Neither does it appear that the use of tbe basement was reasonably necessary for tbe beneficial enjoyment of tbe store.

Under these circumstances tbe charge of tbe trial court was too broad, and tbe exception of tbe defendant thereto is sustained.

New trial.