State v. Webb

64 S.E.2d 268 (1951)

233 N.C. 382

STATE v. WEBB et al.

No. 218.

Supreme Court of North Carolina.

March 28, 1951.

*271 Atty. Gen. Harry McMullan, Asst. Atty. Gen. T. W. Bruton, for the State.

J. R. Barefoot, Benson, for defendants appellants.

WINBORNE, Justice.

The defendant Royall has not appealed from judgment on the verdict rendered against him. So this appeal is concerned with the defendants Paul Webb and Carson Webb who have appealed from the judgments on verdicts against them. It challenges the correctness of the action of the trial court in overruling their demurrers to the evidence. G.S. § 15-173. When so challenged, the evidence is to be taken in the light most favorable to the State. So considered under applicable principles of law, we hold that the evidence shown in the record is not sufficient.

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

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

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

In the Meyers case, supra, it is stated: "If the liquor was within the power of the defendant, in such a sense that he could and did command its use, the possession was as complete within the meaning of the statute as if his possession had been actual." [190 N.C. 239, 129 S.E. 602.] The principle applies alike to possession of "property" designed for the manufacture of intoxicating liquor within the meaning of the statute. G.S. § 18-4.

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

While circumstantial evidence is a "recognized and accepted instrumentality in the ascertainment of truth", State v. Coffey, 210 N.C. 561, 187 S.E. 754, 755, when the State relies upon such evidence for a conviction, as in the present case, "the rule is, that the facts established or adduced on the hearing must be of such a nature and so connected or related as to point unerringly to the defendant's guilt *272 and exclude any other reasonable hypothesis". [228 N.C. 62, 44 S.E.2d 474.] State v. Stiwinter, 211 N.C. 278, 189 S.E. 868; State v. Jones, 215 N.C. 660, 2 S.E.2d 867; State v. Harvey, supra; State v. Coffey, 228 N.C. 119, 44 S.E.2d 886; State v. Minton, 228 N.C. 518, 46 S.E.2d 296; State v. Frye, 229 N.C. 581, 50 S.E.2d 895; State v. Fulk, 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. State v. Massey, 86 N.C. 658; State 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." State v. Vinson, 63 N.C. 335; State v. Harvey, supra, and cases cited. See also State v. Johnson, 199 N.C. 429, 154 S.E. 730; State v. Boyd, 223 N.C. 79, 25 S.E.2d 456; State 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.