State v. . Penry

17 S.E.2d 4, 220 N.C. 248, 1941 N.C. LEXIS 517

• Court: Supreme Court of North Carolina
• Decided: October 29, 1941
• Status: Published

Opinion

DeviN, J.

An examination of the evidence upon which the State relied for conviction leads us to the conclusion that the defendant’s motion for judgment of nonsuit, interposed at the close of the State’s evidence, should have been allowed.

The testimony offered by the State tended to show that upon a search of defendant’s house no intoxicating liquor was discovered. Only the smell of liquor remained in some empty jars. In a field some 200 yards from defendant’s home and on land belonging to another were found fifty-two pints of whiskey concealed. There were a number of houses near this spot, several of them nearer than defendant’s, and three paths traversed the vicinity. It was testified that down below the defendant’s home, near an old house, were found ■ some footprints that led in the direction of the field. By whom the tracks were made did not appear. In the language of the State’s witness, “Folks live all around this place and two or three paths through there.”

The State’s case fails at the first hurdle. Evidence is lacking to show possession of intoxicating liquor, either actual or constructive, on the part of the defendant. The circumstances may have been such as to excite suspicion, but the evidence adduced does not exclude the rational conclusion that some other person may have been the guilty party. S. v. Prince, 182 N. C., 788, 108 S. E., 330; S. v. Montague, 195 N. C., 20, 141 S. E., 285; S. v. English, 214 N. C., 564, 199 S. E., 920; S. v. Shu, 218 N. C., 387, 11 S. E., 155.

The judgment is

Eeversed.