State v. Romes

188 S.E.2d 591, 14 N.C. App. 602, 1972 N.C. App. LEXIS 2189

• Court: Court of Appeals of North Carolina
• Decided: May 24, 1972
• Docket: 7214SC282
• Status: Published

Opinion

MALLARD, Chief Judge.

Defendant’s first contention is that the trial judge erred in failing to allow his motion for judgment as of nonsuit. We do not agree. We think there was ample evidence to require submission of the case to the jury. See State v. Cook, 273 N.C. 377, 160 S.E. 2d 49 (1968). The jury could have found from the defendant’s evidence that he did not possess the heroin, but the jury apparently did not believe all of the testimony of the defendant and his witnesses.

The defendant also argues and contends that the trial court failed to properly instruct the jury concerning “possession” and “constructive possession” of narcotic drugs.

The judge instructed the jury:

“Now, members of the Jury, I instruct you that a person does have possession of a narcotic drug when he has either by himself or together with others the power and the intent to control the disposition or use of the drug.”

Later, after they had retired, the jury voluntarily returned to the courtroom and upon request, the judge instructed them:

“* * * A person to be guilty of possession must knowingly possess it and as I instruct you that a person possesses a narcotic drug when he has either by himself or together with others the power and intent to control the disposition or use of the drug. * * *”

The language used in these instructions is in accordance with the law of possession that is stated in connection with the possession of intoxicating liquor in State v. Fuqua, 234 N.C. 168, 66 S.E. 2d 667 (1951), wherein Justice Ervin said:

“An accused has possession of intoxicating liquor within the meaning of the law when he has both the power and the intent to control its disposition or use. The requisite power to control may reside in the accused acting alone or in combination with others. S. v. Meyers, 190 N.C. 239, 129 S.E. 600.”

In the case of State v. Jones, 213 N.C. 640, 197 S.E. 152 (1938), Justice Barnhill (later Chief Justice) said: “Personal property is in the possession of a person whenever it is in his custody and control and subject to his disposition.” See also, State v. Allen, 279 N.C. 406, 183 S.E. 2d 680 (1971), and 73 C.J.S., Property, § 14.

The principle of law relating to the possession of intoxicating liquor and other personal property is also applicable to the possession of narcotic drugs. We hold, therefore, that the trial judge did not commit error in instructing the jury as to the law on “possession” of narcotic drugs.

In the trial we find no error.

No error.

Judges Campbell and Brock concur.