#### STATE v. NAPOLEON JONES.

(Filed 25 May, 1938.)

1. Criminal Law § 53g—

An assignment of error to the statement of the contentions cannot be sustained in the absence of an exception entered at the time.

2. Gaming § 5 — Evidence held sufficient to be submitted to jury on charge of operating a lottery.

Evidence that numerous lottery tickets and lottery ticket books were found-in the store operated by defendant is sufficient to be submitted to the jury in a prosecution under C. S., 4428, and defendant’s contention that there was no evidence that he was in charge of the store is untenable when the record discloses that several witnesses referred to the locus in quo as defendant’s place of business.

3. Gaming § 4—

The possession of lottery tickets sufficient to raise prima facie evidence of the violation of C. S., 4428, need not be actual physical possession, and they need not be found on defendant’s person, it being sufficient if they are found in his place of business under his control.

Appeal by defendant from Pless, Jr., J., at January Term, 1938, of Guilford. No error.

This is a criminal action instituted in tbe municipal court of tbe city of Greensboro by warrant charging that tbe defendant did unlawfully, willfully open up, set on foot and operate a lottery in violation of C. S., 4428. From a judgment of guilty in tbe municipal court tbe defendant appealed to tbe Superior Court.

On 10 November, 1937, officers searched tbe building occupied by tbe defendant and in which be operated a business known as tbe Sweet Shop. They found a paper sack containing lottery tickets under tbe stove. They also found two new books of tickets in tbe showcase in a box and one book under a cigar box in tbe showcase. William Day and Alex McConnell were in tbe front of tbe store and one of them was copying from one of tbe lottery ticket books. William Stevenson ran out tbe *641back door. A few minutes after tbe officers made tbe search tbe defendant appeared, but no tickets were found on bis person.

Tbe cause was submitted to tbe jury, wbicb, for its verdict, found tbat tbe defendant is guilty as charged. From judgment pronounced thereon tbe defendant appealed.

Attorney-General McMullan and Assistant Attorneys-General Bruton and Willis for the State.

Stern & Stern and R. D. Douglas, Jr., for defendant, appellant.

Barnhill, J.

Tbe defendant excepts to certain portions of tbe charge. These exceptive assignments of error are directed to tbe alleged erroneous statement of contentions and no exception was entered at tbe time. These assignments cannot be sustained.

Tbe only other exceptive assignment of error is directed to tbe refusal of tbe court to grant tbe defendant’s motion as of nonsuit entered at tbe conclusion of tbe State’s evidence, tbe defendant having offered no evidence in rebuttal. In support of this contention tbe defendant insists tbat tbe evidence tended only to show tbat be was tbe legal owner of a store in tbe business district of tbe colored section of Greensboro in wbicb lottery tickets were found and tbat there was no evidence showing that tbe defendant bad anything whatsoever to do with said store other than tbat be was tbe legal owner thereof. Tbat is, tbe defendant contends tbat there is no evidence tending to show tbat tbe defendant was operating said place of business. This contention is not supported by the record. "Witnesses testified: “Tbe defendant Jones was not at bis place of business when I arrived.” “It is called tbe Sweet Shop. He (tbe defendant) sells cigarettes and cigars, candy, cold drinks and shoeshines.” “I, with other officers, went to tbe place of business of tbe defendant.” “It was in Napoleon Jones’ place of business.” “Tbe defendant came into bis place of business less than ten minutes after Mr. Taylor and I arrived.” “Napoleon Jones came into bis place of business about tbe time tbat we got up to tbe front door where officers Murphy and Taylor were.” This evidence was amply sufficient to support a finding tbat tbe defendant was in actual charge of tbe place of business in wbicb lottery tickets were found.

C. S., 4428, after defining tbe crime for tbe commission of wbicb tbe defendant stands indicted, provides : “. . . and tbe mere possession of such tickets shall be prima facie evidence of tbe violation of this section.” Under this section it is not necessary for tbe State to show tbat tbe defendant bad lottery tickets in bis actual possession and upon bis person at tbe time charged. Personal property is in tbe possession of a person whenever it is in bis custody and control and subject to bis disposition. This Court has repeatedly held, in cases involving tbe *642unlawful possession of intoxicating liquors, tbat where the evidence discloses that liquor was found upon premises owned or in the possession of the defendant and frequented by him in such manner and to such an extent that it is reasonable to conclude that it is probable that he had knowledge of the presence of such property upon his premises, it is sufficient evidence to be submitted to a jury for it to determine whether the defendant in fact was in possession of such property or knowingly permitted it to he and remain upon his premises. Here, others were openly in possession of butter and egg lottery tickets in defendant’s place of business, and two unused books of tickets were found in a box in his showcase and another book was found under a cigar box in the showcase. This evidence is uncontradicted and was amply sufficient to justify the submission of the case to the jury.

The court properly denied defendant’s motion for judgment as of nonsuit. In the trial below we find

No error.