State v. Webb

64 S.E.2d 268, 233 N.C. 382, 1951 N.C. LEXIS 605

• Court: Supreme Court of North Carolina
• Decided: March 28, 1951
• Docket: 218
• Status: Published

Opinion

WiNBORNE, J'.

Tbe defendant Royall bas not appealed from judgment on tbe verdict rendered against bim. So tbis appeal is concerned witb tbe defendants Paul Webb and Carson Webb wbo bave appealed from tbe judgments on verdicts against tbem. It challenges tbe correctness of tbe action of tbe trial court in overruling tbeir demurrers to tbe evidence. G.S. 15-173. When so challenged, tbe evidence is to be taken in tbe light most favorable to tbe State. So considered under applicable principles of law, we bold that tbe evidence shown in tbe record is not sufficient.

In this State it' is unlawful for any person to possess any intoxicating liquor for tbe purpose of sale. G.S. 18-2. It is also unlawful to bave or possess any “property” designed for tbe manufacture of intoxicating liquor intended for use, or which has been used in violating tbe prohibition laws of North Carolina. G.S. 18-4.

Defendants are charged witb violating each of these statutes. Tbeir pleas of not guilty put in issue every element of each of tbe offenses charged. S. v. Meyers, 190 N.C. 239, 129 S.E. 600; S. v. Harvey, 228 N.C. 62, 44 S.E. 2d 472; S. v. Hendrick, 232 N.C. 447, 61 S.E. 2d 349.

Possession, within tbe meaning of tbe above statute, may be either actual or constructive. S. v. Lee, 164 N.C. 533, 80 S.E. 405; S. v. Meyers, supra; S. v. Penry, 220 N.C. 248, 17 S.E. 2d 4.

In tbe Meyers case, supra, it is stated: “If the liquor was within tbe power of tbe 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 his possession bad been actual.” The principle applies alike to possession of “property” designed for tbe manufacture of intoxicating liquor within tbe meaning of tbe statute. G.S. 18-4.

Concededly there is no evidence that either defendant bad actual possession of tbe liquors or of tbe “property” found. But tbe State relies upon circumstantial evidence to support tbe conviction of appealing defendants on the theory that tbe circumstances testified to show that each of tbem bad constructive possession of both tbe liquor and tbe “property.”

While circumstantial evidence is a “recognized and accepted instrumentality in tbe ascertainment of truth,” S. v. Coffey, 210 N.C. 561, 187 S.E. 754, when tbe State relies upon such eAÚdence for a conviction, as in the present case, “tbe rule is that the facts established or advanced on tbe bearing must be of such a nature and so connected or related as to point unerringly to tbe defendant’s guilt and to exclude any other reasonable hypothesis.” S. v. Stiwinter, 211 N.C. 278, 189 S.E. 868; S. v. Jones, 215 N.C. 660, 2 S.E. 2d S67; S. v. Harvey, supra; S. v. Coffey, 228 N.C. 119, 44 S.E. 2d 886; S. v. Minton, 228 N.C. 518, 46 S.E. 2d 296; S. v. Frye, 229 N.C. 581, 50 S.E. 2d 895; S. v. Fulls, 232 N.C. 118, 59 S.E. 2d 617.

Moreover, the guilt of a person charged with the commission of a crime is not to be inferred merely from facts consistent with his guilt. They must be inconsistent with his innocence. S. v. Massey, 86 N.C. 658; S. v. Harvey, supra.

“Evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient foundation for a verdict and should not be left to a jury.” S. v. Vinson, 63 N.C. 335; S. v. IIarvey, supra, and cases cited. See also S. v. Johnson, 199 N.C. 429, 154 S.E. 730; S. v. Boyd, 223 N.C. 79, 25 S.E. 2d 456; S. v. Murphy, 225 N.C. 115, 33 S.E. 2d 588.

In the Murphy case defendant being charged with highway robbery, the evidence showed that others had equal opportunity with defendant for taking the money. It is there held that under such circumstances to find that any particular person took the money is to enter the realm of speculation, and that verdicts so found may not stand.

Just so in the case in hand, to hold that there is sufficient evidence to support a finding that either of the appealing defendants had 'constructive possession of either the liquor or the “property,” as charged, is conjecture and speculation. They ought not to be convicted on such evidence. Hence their demurrers to the evidence should have been sustained.

Therefore, the judgments from which this appeal is taken are hereby

Reversed.