State v. . Hanford , 212 N.C. 746 ( 1938 )

The defendant was tried at the October Special Term, 1937, of the Superior Court of Alamance County on a criminal warrant which was issued by a justice of the peace of said county on a duly verified complaint that "on or about 3 July, 1937, Marvin Hanford willfully and feloniously did have in his possession, illegally, fifteen (15) gallons of intoxicating liquor for the purpose of sale, contrary to the form of the statute and against the peace and dignity of the State."

He was first tried and convicted on said warrant in the general county court of Alamance County. He appealed from the judgment of the general county court to the Superior Court of Alamance County, in which court the action was tried de novo, as provided by statute.

At the close of the evidence for the State, the defendant moved for judgment dismissing the action as of nonsuit. The motion was denied, and defendant excepted. No evidence was introduced by the defendant.

The evidence was submitted to the jury, who returned a verdict that the defendant is "guilty of having whiskey in his possession for the purpose of sale."

From judgment on the verdict the defendant appealed to the Supreme Court, assigning errors in the trial and in the judgment. On 3 July, 1937, on the complaint of a police officer of Alamance County, which was duly verified, a justice of the peace of said county issued a search warranty by which the said officer was authorized to search the premises of one Lacey Scott, located on a public road, near the town of Burlington, in said county, for intoxicating liquor alleged to be in the possession of the said Lacey Scott on said premises. After the said warrant had been issued, and before it was served, the officer, without notice to the justice of the peace and without his authority, inserted in both the complaint and the warrant the name of the defendant Marvin Hanford. The name of Lacey Scott, which appeared in the complaint and in the warrant when the warrant was issued by the justice of the peace, was not erased from either the complaint or the warrant.

The officer went to the home of the defendant Marvin Hanford, and after advising him and Lacey Scott, both of whom were at defendant's home, that he had the warrant, authorizing him to search their premises, the officer proceeded to search the house of the defendant Marvin Hanford, and a room in said house, which was occupied by Lacey Scott.

In a back room in defendant's house the officer found fifteen gallons of whiskey and twenty empty cases. This room was occupied by Lacey Scott, to whom the defendant Marvin Hanford had rented the room. The doors to the room were closed, but were not locked, at the time of the search. Both Lacey Scott and the defendant Marvin Hanford told the officer that the whiskey was the property of Lacey Scott. There was no evidence tending to show that the defendant Marvin Hanford had any control over the whiskey found in Lacey Scott's room, or that he knew that the whiskey was in the room. In the absence of such evidence, there was error in the refusal of the court to allow defendant's motion for judgment dismissing the action as of nonsuit.

There was no evidence tending to show that the officer searched the premises of the defendant Marvin Hanford, under the search warrant in his possession at the time he went to defendant's home. He searched only the premises of Lacey Scott, as he was authorized to do under a valid search warrant. The evidence tending to show the results of such search was not incompetent under the provisions of section 6 1/2 of chapter 339, Public Laws of North Carolina, 1937. The evidence was competent, but not sufficient to show that the whiskey found in the room which the defendant had rented to Lacey Scott was in the possession of the defendant.

The action is remanded to the Superior Court of Alamance County for judgment in accordance with this opinion. C. S., 4643. The judgment is

Reversed.