State v. . Rose

156 S.E. 916, 200 N.C. 342, 1931 N.C. LEXIS 323

• Court: Supreme Court of North Carolina
• Decided: February 18, 1931
• Status: Published

Opinion

CoNNOR, J.

Tbe assignments of error on this appeal are based on defendant’s exception to tbe refusal of tbe court to instruct tbe jury that defendant was presumed to be innocent of tbe crime with which be is charged in tbe warrant, and to state to tbe jury tbe contentions of tbe defendant, as requested by bis counsel at tbe conclusion of tbe charge to tbe jury. This is tbe only exception appearing in tbe record, except tbe formal exception to tbe refusal of tbe court to set aside tbe verdict and grant a new trial.

Tbe evidence offered by tbe State, if believed by tbe jury, was of sufficient probative value to establish tbe truth of tbe State’s contention that at tbe time and place stated in tbe warrant tbe defendant bad intoxicating liquor in bis possession for tbe purpose of sale. S. v. Myers, 190 N. C., 239, 139 S. E., 600; S. v. Ross, 168 N. C., 130, 83 S. E., 307; S. v. Lee, 164 N. C., 533, 80 S. E., 405. There was no evidence tending to contradict tbe evidence for tbe State, or to impeach tbe witness for tbe State. There was evidence tending to show that tbe whiskey found by tbe officers in defendant’s store was at least in bis constructive possession. This was sufficient, for as was said in S. v. Myers; supra, “If tbe liquor was in tbe power of defendant, in such a sense that be could and did command its use, tbe possession was as complete within tbe meaning of tbe statute as if bis possession bad been actual.” If tbe jury believed tbe evidence, and found beyond a reasonable doubt that tbe whiskey was in tbe possession of tbe defendant, then there was ample evidence that defendant bad tbe whiskey in bis possession for tbe purpose of sale.

In its charge tbe court bad instructed tbe jury that if they found tbe facts to be as tbe evidence tended to show, beyond a reasonable doubt, they should return a verdict of guilty. Having correctly imposed upon tbe State tbe burden of proof beyond a reasonable doubt, tbe court declined to instruct the jury that defendant was presumed to be innocent. While tbe court might have well complied with tbe request of defendant’s counsel, under tbe authority of S. v. Boswell, 194 N. C., 260, 139 S. E., 374, we cannot bold that tbe refusal to give tbe instruction as requested was error for which the defendant is entitled to a new trial, as a matter of law. The request for the instruction was not in writing, and was first made after the court had concluded its charge to the jury. C. S., 565, and C. S., 566.

Nor was it error in the instant case for the court to refuse to state the contentions of the defendant after it had concluded its charge to the jury. The evidence consisted of the testimony of only one witness, whose testimony -was not impeached on his cross-examination or otherwise. The law applicable to the facts shown by all the evidence is simple and plain. The charge was in substantial compliance with 0. S., 564. We find no error for which defendant is entitled to a new trial. The judgment is affirmed.

No error.