{ "id": 8626805, "name": "STATE v. TOM R. PIERCE", "name_abbreviation": "State v. Pierce", "decision_date": "1926-12-31", "docket_number": "", "first_page": "766", "last_page": "771", "citations": [ { "type": "official", "cite": "192 N.C. 766" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "188 N. C., 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654051 ], "opinion_index": 0, "case_paths": [ "/nc/188/0447-01" ] }, { "cite": "188 N. C., 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654645 ], "opinion_index": 0, "case_paths": [ "/nc/188/0630-01" ] }, { "cite": "187 N. C., 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653891 ], "opinion_index": 0, "case_paths": [ "/nc/187/0400-01" ] } ], "analysis": { "cardinality": 636, "char_count": 11924, "ocr_confidence": 0.451, "pagerank": { "raw": 2.763543139210542e-07, "percentile": 0.8337746718051902 }, "sha256": "a25f91038907e2d89eb79d54838a208dad5434a123831c5368d1f1c89858247c", "simhash": "1:54630d207cee7984", "word_count": 2135 }, "last_updated": "2023-07-14T21:52:38.190415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. TOM R. PIERCE." ], "opinions": [ { "text": "ClaeksON, J.\nTbe defendant introduced no evidence, but at tbe close of the State\u2019s evidence moved for judgment of nonsuit. C. S., 4643. Tbe court below overruled tbe motion. In tbis we think there was no error. On a motion to nonsuit, tbe evidence is to be taken in tbe light most favorable to tbe State, and it is entitled to tbe benefit of every reasonable intendment upon tbe evidence, and every reasonable inference to be drawn therefrom. We think there was more than a scintilla of evidence, and tbe evidence, both direct and circumstantial, amply sufficient to be submitted to tbe jury. S. v. Sigmon, 190 N. C., p. 684.\nIn S. v. Meyers, 190 N. C., p. 239, Varser, J., writing for tbe Court, citing many authorities, says: \u201cPossession usually implies detention or control, or tbe right thereto. Tbe possession may be in one person for another, or in one for several, or in several for another, or for themselves, and others not actually present, or however distant from tbe whiskey itself. Possession is tbe retention or enjoyment of a thing which a man bolds or exercises by himself or by another who keeps or exercises it in bis name. . . . Tbe possession may, within tbis statute, be either actual, or constructive. ... If a man procures another to obtain liquor for him and put it in a given place, and tbe other performs tbis agreement and places tbe liquor, then tbe possession is complete. A person may be in tbe possession of tbe article which be has not at tbe moment about bis person. Tbe Turlington Act \u2018shall be liberally construed to tbe end that tbe use of intoxicating liquor as a beverage may be prevented.\u2019 There tbe constructive possession, as well as tbe actual possession, is in tbe contemplation of tbe statute.\u201d\nPublic Laws 1923, chapter 1, known as tbe Conformity or Turlington Act, sec. 2, 3 C. S., 3411(b), says: \u201cNo person shall manufacture sell, barter, transport, import, export, deliver, furnish, purchase, or possess any intoxicating liquor except as authorized in tbis act; and all tbe provisions of tbis act shall be liberally construed to tbe end that tbe use of intoxicating liquor as a beverage may be prevented,\u201d etc. Section 10, 3 C. S., 3411(j), is as follows: \u201cTbe possession of liquor by any person not legally permitted under tbis act to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of iu violation of the provisions of this act. But it shall not be unlawful to possess liquor in one\u2019s private dwelling while the same is occupied and used by him as his dwelling only, provided such liquor is for use only for the personal consumption of the owner thereof, and his family residing in such dwelling, and for his bona fide guests when entertained by him therein.\u201d\nThe defendant occupied and used the rear of the filling station as his private dwelling. The court below, on this aspect, charged the jury as follows: \u201cPrima facie evidence means that evidence which is received and accepted and continued until the contrary is shown, and you gentlemen of the jury will remember the evidence, giving the State of North Carolina a fair and an impartial trial, and giving the defendant at bar a fair and an impartial trial.\u201d This instruction, standing alone, may be subject to some criticism (S. v. Wilkerson, 164 N. C., p. 431), but in this immediate connection the judge charged the jury as follows: \u201cNow the State has the duty of satisfying you beyond a reasonable doubt of the guilt of the defendant. A reasonable doubt is an honest, substantial misgiving generated by insufficient proof, insufficiency which fails to satisfy your reason of the guilt of the accused. A reasonable doubt is not a doubt suggested by ingenuity of counsel or by your own ingenuity not legitimately proven by the testimony. It is not a doubt to permit the defendant to escape the penalty of the law. It is not a possible doubt, an imaginary doubt or a captious doubt, but it is a fair doubt, based upon reason and common sense and growing out of the evidence in the case.\u201d Taking the instruction in its entirety, we think it should be upheld. McDaniel v. R. R., 190 N. C., at p. 475.\nIf he had possession of liquor as disclosed by this record it was prima facie evidence that he had it for sale. If not in his private dwelling, if he had actual constructive possession, whether for sale or not, it is a violation of law. 3 C. S., 3411(b) (j); S. v. McAllister, 187 N. C., 400; S. v. Knight, 188 N. C., 630.\nIt will be noted that section 10 has reference to the liquor \u201cm one\u2019s private dwelling while the same is occupied and used by him as his dwelling only.\u201d Defendant cannot complain of the charge. There was sufficient direct and circumstantial evidence to be submitted to the jury, taking into consideration the testimony of Bizzell, that defendant had possession of liquor \u2014 not in his private dwelling. S. v. Bradsher, 188 N. C., 447 ; S. v. Sigmon, supra.\nThe charge of reasonable doubt is substantially that approved in S. v. Steele, 190 N. C., at p. 512. See S. v. Sigmon, supra. The use of \u201cproven by tbe testimony\u201d for tbe words \u201cwarranted by tbe testimony,\u201d is a distinction without a difference, to warrant tbe testimony there must be proof. Leaving out tbe words \u201cborn of a merciful inclination or disposition\u201d seems to be more favorable to tbe defendant. It emphasizes tbat when warranted by proof merciful inclination or disposition should not supplant law.\nOn tbe entire record we can find no prejudicial or reversible error.\nNo error.", "type": "majority", "author": "ClaeksON, J." } ], "attorneys": [ "Attorney-General Brummitt and Assistant. Attorney-General Nash for the State.", "J. Faison Thomson, Outlaw & Dortch and Murray Allen for defendant." ], "corrections": "", "head_matter": "STATE v. TOM R. PIERCE.\n(Filed 31 December, 1926.)\n1. Intoxicating Liquor \u2014 Spirituous Liquor \u2014 Evidence\u2014Nonsuit\u2014Motions.\nEvidence in tbis case tending to show that the defendant lived in a part of his filling station used as a residence, where was found a quantity of empty bottles smelling of whiskey, and that in the vicinity was a used roadway leading to several places where cartons with bottles of whiskey were concealed, etc.: Held, suflicient to deny defendant\u2019s motion as of nonsuit. 3 C. S., 3411(b), (j).\n2. Evidence \u2014 Nonsuit\u2014Criminal Law.\nUpon a motion as of nonsuit upon tlie evidence in a criminal case, tlie evidence is to be taken in tbe light most favorable to tbe State, with all reasonable inferences therefrom resolved in its favor.\n3. Intoxicating Eiquor \u2014 Spirituous Liquor \u2014 Prima Eacie Case \u2014 Evidence \u2014Constructive Possession.\nA prima facie case of the unlawful sale of intoxicating liquors may be established by circumstances sufficient to show that the defendant had in his constructive possession large quantities of whiskey not on his premises, in the possession of others who held it for him.\n4. Instructions \u2014 Criminal Law \u2014 Burden of Proof \u2014 Charge Construed as a Whole.\nAn instruction in a \u201ccriminal case will not be held for prejudicial or reversible error for failing in one part of the charge to place the burden of proof on the State to show guilt beyond a reasonable doubt, when in the same connection, and by another portion of the charge, this requirement is clearly given.\n5. Instructions \u2014 Words and Phrases.\nThe use of the words \u201cproven by the testimony\u201d for the words \u201cwarranted by the testimony,\u201d is not subject to just criticism by the defendant in a criminal case, when used in the charge by the judge to the jury in relation to the degree of proof required of the State to c.onvict.\nAppeal from Grcmmer, J., and a jury, at August Term, 1926, of 'WayNE. No error.\nTbe defendant was indicted for baving in bis possession, on or about 19 June, 1926, about sixty pints of wbistey for tbe purpose of sale. Tbe defendant operated a filling station on tbe Ealeigb hard-surfaced' highway, No. 10, about a mile from tbe city limits of Goldsboro. From information received, L. O. Ebodes, deputy sheriff of Wayne County, obtained under tbe law a search warrant. He, with tbe sheriff\u2019s son, went to Pierce\u2019s premises .to-search, and informed him of tbe warrant. Tbe search was made. (1) Ebodes found in tbe store a pint bottle with half teaspoon of liquor in if, (2) under the store, where defendant kept bis car, be found a box containing fifteen or twenty empty pint bottles sitting on tbe running board of defendant\u2019s car, similar to tbe one found in tbe store; (3) be saw tracks leading from tbe filling station, which be followed to a ditch, and there found a Big Boy carton with cells in it that bold tbe bottles apart. \u201cOne bad a tiny bit of liquor, a pint bottle just like tbe other one I found.\u201d That was seventy (66) feet from tbe corner post of tbe filling station. He followed tbe ditch on down directly back of tbe store and (a) found another paste-board carton in a sack with no bottles in it, but three jug stoppers in it. Same kind of carton found at tbe other place. Eobuck (W. P. Grant), wbo was witb bim, called \u201cCome over here; bere it is,\u201d and be found (b) two cases, one full and a part- of a case, same as other pasteboard carton witb letters on tbe side of it. One full case of whiskey, twenty-four pints, and tbe other six or seven pints bad been taken out; (c) another case in a sack, same kind, (d) Then another carton practically full of whiskey, a bole torn in tbe top, same kind of bottles. He kept going a little further until six cartons on that side, and be bad two, making eight \u2014 in all sixty-five pints. Defendant was witb bim during tbe search.\nRhodes testified further: \u201cWhen I started to tbe first place where I found tbe carton, I said, \u2018All these bottles look bad,\u2019 and be (defendant) said, \u2018I can\u2019t help that, people come bere and drink whiskey and throw tbe bottles- over tbe fence, and I can\u2019t help it.\u2019 They were scattered between tbe filling station and tbe ditch; emptied and thrown out there. I don\u2019t know bow many we found scattered; I reckon some ten or twelve were out there.\u201d Tbe search was made about 4 o\u2019clock Saturday evening.\nW. P. Grant, a deputy sheriff, testified in part: \u201cI went under tbe store. I first lifted up a bundle of broom straw and found a case of empty bottles. I set them on tbe running board of Tom Pierce\u2019s car. These bottles bad tbe odor of whiskey in them. Tbe bottles were all pint bottles, twenty-four to tbe case.\u201d He corroborated Rhodes in other particulars.\n' Tbe distance from tbe store to tbe place Rhodes found tbe carton was twenty-two yards and about fifty-one yards to where tbe first case of other liquor was found. A path leading to each place and tbe whiskey was under some briars at ends of tbe paths. Tbe liquor found was across tbe road from tbe filling station. Defendant used tbe back of tbe store or filling station as a residence.\nH. L. Bizzell testified in part: Tbe last- part of May, about 7 or 8 o\u2019clock in tbe morning, before tbe search in June, \u201cI was coming from towards Kenly into tbe highway No. 10, and in just about a hundred or a hundred and fifty yards of bis place I saw a man banding Pierce jugs, and be was putting them in sacks, and I thought to myself it never would do to ru\u00f1 right up on them, and I blew my born good and loud, and they done just like a worm in hot ashes; they just went all down over it. . . . He went over tbe sack and down to tbe ground, both men did, and I was going on No. 10, and a car was coming, and I couldn\u2019t look to see what they did, but that was what happened. I did not recognize tbe other man, but Pierce was standing in front taking tbe jug and putting it into tbe tow-bag. There was only one man banding those jugs to Tom Pierce. I saw bim band Pierce tbe third jug. That man was driving a Ford automobile; it looked like be got tbe jug from tbe back of tbe car. Tbis car came up to tbe filling station from tbe same way I did, and was very near tbe door \u2014 about six or eight feet from tbe door.\u201d\nAttorney-General Brummitt and Assistant. Attorney-General Nash for the State.\nJ. Faison Thomson, Outlaw & Dortch and Murray Allen for defendant." }, "file_name": "0766-01", "first_page_order": 840, "last_page_order": 845 }