{ "id": 8608601, "name": "STATE v. CARSON WEBB and PAUL WEBB", "name_abbreviation": "State v. Webb", "decision_date": "1951-03-28", "docket_number": "", "first_page": "382", "last_page": "387", "citations": [ { "type": "official", "cite": "233 N.C. 382" } ], "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": "33 S.E. 2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601198 ], "opinion_index": 0, "case_paths": [ "/nc/225/0115-01" ] }, { "cite": "25 S.E. 2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599098 ], "opinion_index": 0, "case_paths": [ "/nc/223/0079-01" ] }, { "cite": "154 S.E. 730", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N.C. 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603127 ], "opinion_index": 0, "case_paths": [ "/nc/199/0429-01" ] }, { "cite": "63 N.C. 335", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277347 ], "opinion_index": 0, "case_paths": [ "/nc/63/0335-01" ] }, { "cite": "86 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275297 ], "opinion_index": 0, "case_paths": [ "/nc/86/0658-01" ] }, { "cite": "59 S.E. 2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595672 ], "opinion_index": 0, "case_paths": [ "/nc/232/0118-01" ] }, { "cite": "50 S.E. 2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167055 ], "opinion_index": 0, "case_paths": [ "/nc/229/0581-01" ] }, { "cite": "46 S.E. 2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627120 ], "opinion_index": 0, "case_paths": [ "/nc/228/0518-01" ] }, { "cite": "44 S.E. 2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624347 ], "opinion_index": 0, "case_paths": [ "/nc/228/0119-01" ] }, { "cite": "215 N.C. 660", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631293 ], "opinion_index": 0, "case_paths": [ "/nc/215/0660-01" ] }, { "cite": "189 S.E. 868", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626174 ], "opinion_index": 0, "case_paths": [ "/nc/211/0278-01" ] }, { "cite": "187 S.E. 754", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627674 ], "opinion_index": 0, "case_paths": [ "/nc/210/0561-01" ] }, { "cite": "17 S.E. 2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 248", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11301416 ], "opinion_index": 0, "case_paths": [ "/nc/220/0248-01" ] }, { "cite": "80 S.E. 405", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "164 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659081 ], "opinion_index": 0, "case_paths": [ "/nc/164/0533-01" ] }, { "cite": "61 S.E. 2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605472 ], "opinion_index": 0, "case_paths": [ "/nc/232/0447-01" ] }, { "cite": "44 S.E. 2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622996 ], "opinion_index": 0, "case_paths": [ "/nc/228/0062-01" ] }, { "cite": "129 S.E. 600", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599745 ], "opinion_index": 0, "case_paths": [ "/nc/190/0239-01" ] } ], "analysis": { "cardinality": 672, "char_count": 13996, "ocr_confidence": 0.485, "pagerank": { "raw": 3.717845118070165e-07, "percentile": 0.893706544281153 }, "sha256": "dc819df7509fe8925a342557ddedb81a6243d0cac62123e998750a12285c58ca", "simhash": "1:296315e290e4f7f7", "word_count": 2508 }, "last_updated": "2023-07-14T21:52:46.396528+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. CARSON WEBB and PAUL WEBB." ], "opinions": [ { "text": "WiNBORNE, J'.\nTbe 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.\nIn 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 \u201cproperty\u201d 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.\nDefendants 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.\nPossession, 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.\nIn tbe Meyers case, supra, it is stated: \u201cIf 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.\u201d The principle applies alike to possession of \u201cproperty\u201d designed for tbe manufacture of intoxicating liquor within tbe meaning of tbe statute. G.S. 18-4.\nConcededly there is no evidence that either defendant bad actual possession of tbe liquors or of tbe \u201cproperty\u201d 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 \u201cproperty.\u201d\nWhile circumstantial evidence is a \u201crecognized and accepted instrumentality in tbe ascertainment of truth,\u201d S. v. Coffey, 210 N.C. 561, 187 S.E. 754, when tbe State relies upon such eA\u00dadence for a conviction, as in the present case, \u201ctbe 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\u2019s guilt and to exclude any other reasonable hypothesis.\u201d 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.\nMoreover, 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.\n\u201cEvidence 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.\u201d 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.\nIn 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.\nJust 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 \u201cproperty,\u201d 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.\nTherefore, the judgments from which this appeal is taken are hereby\nReversed.", "type": "majority", "author": "WiNBORNE, J'." } ], "attorneys": [ "Attorney-General McMullan and Assistant Attorney-General Bruton for the State.", "J. 11. Barefoot fox defendants, appellants." ], "corrections": "", "head_matter": "STATE v. CARSON WEBB and PAUL WEBB.\n(Filed 28 March, 1951.)\n1. Criminal Law \u00a7 52a (1)\u2014\nUpon demurrer to the evidence it must be taken in the light most favorable to the State. G.S. 15-173.\n2. Criminal Law \u00a7 28\u2014\nDefendant\u2019s plea of not guilty puts in issue every element of each offense of which he stands charged.\n3. Intoxicating Liquor \u00a7 4b\u2014\nPossession of intoxicating liquor within the meaning of G.S. 18-2 and possession of property designed for the manufacture of intoxicating liquor within the meaning of G.S. 18-4 may be either actual or constructive, it being sufficient if the liquor or the property is within the power of the defendant in such sense that he can and does command its use.\n4. Criminal Law \u00a7 52a (3) \u2014\nWhile circumstantial evidence is an accepted instrumentality in the ascertainment of truth, in order to be sufficient to overrule nonsuit the circumstances must be so connected or related as to point unerringly to defendant\u2019s guilt and exclude any other reasonable hypothesis, and circumstantial evidence which is consistent with innocence or merely shows it possible that defendant committed the offense or raises a mere conjecture of guilt is insufficient to be submitted to the jury.\n5. Intoxicating Liquor \u00a7 9d \u2014 Circumstantial evidence of defendants\u2019 guilt of possession of intoxicating liquor and utensils of manufacture held insufficient for jury.\nThe State\u2019s evidence tended to show that each of the two appealing defendants and also another defendant who did not appeal, lived in apartments in a large farmhouse with their respective kinsmen or families, that a quantity of corn beer, liquor and property susceptible to use in the manufacture of intoxicating liquor were found on the premises, with tracks or paths running therefrom to the house. There was no evidence tending to identify any of the tracks as those of defendants, or that the tracks from the back of the house led from any particular apartment. Held: There is no sufficient evidence to support a finding that either of the appealing defendants had constructive possession of either the liquor or the utensils but leaves the matter in conjecture and speculation and is insufficient to be submitted to the jury.\nAppeal by defendants from Burgivyn, Special Judge, at Special October Term, 1950, of JohNStoN.\nCriminal prosecution upon a bill of indictment containing two counts charging that Carson Webb, Paul Webb and W. G. Eoyall did on 11 October, 1950, unlawfully (1) \u201chave in their possession 18 barrels of beer, one liquor still, oil cans, oil intended for the use in the unlawful manufacturing of intoxicating liquor,\u201d and (2) \u201chave and possess 21% gallons intoxicating liquor for the purpose of sale\u201d against the form of the statute, etc.\nThe defendants pleaded not guilty as to both counts.\nUpon the trial in Superior Court, the State offered evidence tending to show, as of 11 October, 1950, the date of the alleged offenses, a narrative substantially as follows:\nDefendants reside in a large house near Four Oaks, \u2014 Golden Eoyall and his sister in one apartment, Paul Webb and his sister in another, and Carson Webb and his wife and family in another. They are all related by blood or marriage. The house is located \u201cjust off,\u201d and about midway a two-miles long State-maintained dirt road between two hard-surfaced highways. It turns off the hard-surfaced highway \u201ccoming from Benson,\u201d near an old millpond.\nAbout seventy-five feet south of the house, there is a path or road or cartway leading from the dirt road in front of the house to, and by, and beyond a tobacco barn into a wooded area. This barn is about 125 yards from the dirt road, and about 100 yards from the house. There were fields around the house up to the yard and around the barn, both cultivated by Eoyall, and a cornfield beyond and about 150 yards from the barn. This cornfield is cultivated by Paul Webb.\nDeputy Sheriff Hales, and three other officers, visited the premises above described on the day above stated. Traveling by car, they entered the path or road leading from the dirt road. They intended to stop in the yard, but seeing a \u201cbunch of men\u201d at the barn, they drove on to it. As they approached, Royall went around behind the barn shelter and reappeared in a second or two, having two men with him. The testimony of the officers varied as to who the two were. There were four men at the barn, Royall and Paul Webb and two others, Colon McGee and Charlie Tart. According to testimony of one officer the two were Paul Webb and McGee. Carson Webb was not there.\nRehind, and about 12 feet from the barn, where there were several fresh foot tracks, the officers found about a quart of fresh corn meal beer in a half-gallon jar in a stump hole under a piece of tin. From the barn the officers followed fresh footprints, \u201cgoing and coming\u201d down the \u201cwagon path or old cart path\u201d to and across a branch, to the edge of a cornfield and into the woods, \u2014 beyond \u201ca little streak of woods,\u201d where they found a still,' \u2014 600 to 700 yards from the house and about 600 yards from the barn, \u2014 but not in sight of either the house or the barn.\nThe still was a 400-gallon submarine type, a 24-barrel outfit, operated by oil. Six barrels had been run out, and there were 18 to run. \u2019It was corn meal beer, \u2014 similar to the kind found at the tobacco barn.\nBetween the barn and the still the officers found an automobile pump,\u2014 10 or 15 steps from the still, and two demijohns and an oil can which had the odor of liquor and oil in them. The pump was the kind used to pump air into the oil burner tank.\nAlso at the tobacco barn there was a big 5-gallon oil can with about a gallon of oil in it, \u2014 hanging under a big drum. About 50 feet from the barn there was a half-gallon jar of whiskey. And following a path across an oak ridge, the officers found below the ridge a pit with four or five demijohns full of \u201cbootleg\u201d whiskey. Close by there was another 5-gallon jar in a hole \u2014 not over 50 yards from the house. The liquor found in the wooded area or oak ridge was about 350 yards from, and in sight of the house.\nBetween the house and barn there was a half-gallon jar with the odor of corn beer in it, \u2014 the same kind of beer found at the tobacco barn.\nAt the rear of the house, under the well shelter, located about 20 feet from the house, there were a half-gallon jar with the \u201cdrainings\u201d or corn beer in it, four or five gallon oil cans with the odor of kerosene oil in them, and a beer can with beer in it. \u201cThey got water out of the same well and under the well shelter,\u201d the officers testified. And there was a wash pot in the yard. From it there was \u201ca little traffic,\u201d that is, footprints or foot path, across the cotton patch. On the fourth row of cotton behind the wash pot there were three half-gallon jars of white whiskey\u2014 about 25 feet from Paul Webb\u2019s door \u2014 and a short distance from the back door of Carson Webb\u2019s apartment. In this connection, Deputy Sheriff Hales was asked tbe question, \u201cWas there any sign or any path of traffic from the door to where you found the liquor?\u201d In reply he stated: \u201cOne at the back door and another went out back across just on the left just behind the pump; straight out from the well shelter there was traffic, I would say as near as from here to the wall, if not nearer. The one from the corner of the back door I would say was not but just a little ways; went out here, back here and around to the left and the well shelter was straight here.\u201d And, under cross-examination, Deputy Sheriff Hales continued: \u201cI do not know how many used that back door, as there is a back porch comes out of one apartment, and then there is a back porch from another one coming out of that kitchen. You come out on the back porch to the kitchen; they all use it, so I don\u2019t know whose tracks lead to the liquor.\u201d\nThe officers testified that they did not know who owned the land where the still, whiskey and beer were found'. There is testimony that Annie Royall owned the house and rented it \u201cto these people.\u201d And there is testimony that the house and premises \u201cwere in the names\u201d of Annie Royall and Carson Webb\u2019s wife. Rut there is no evidence as to who owns the land where the still was found or as to whose land it adjoins.\nAnd as to the tracks or footprints, Deputy Sheriff Hales testified: \u201cI could not identify any of the tracks leading to the beer, the still, or any of the whiskey as being made by either of defendants.\u201d He further testified : \u201cI cannot say that the liquor belonged to either of the defendants or to some other person in that vicinity. All I can tell is where I found it.\u201d There is other testimony to like effect.\nThe officers arrested Paul Webb and Royall while on the premises. They arrested Carson Webb later on the night of the day of their visit.\nPaul Webb was drinking something that smelled like beer. \u201cHe was high.\u201d He did not say anything about whose whiskey it was the officers found. Royall denied knowing anything about it, or about the still. When arrested he seemed a little nervous. There was no smell of alcohol on him.\nYerdict: Guilty as charged in said bill of indictment in manner and form as charged.\nJudgment: As to Paul Webb: Confinement in the common jail for a period of six months, and assigned to work the roads under the supervision of the State Highway and Public Works Commission.\nAs to Carson Webb: Sentenced to jail for 12 months to work under direction of State Highway and Public Works Commission.\nTo the foregoing judgment the defendants Carson Webb and Paul Webb except and appeal to the Supreme Court, and assign error.\nAttorney-General McMullan and Assistant Attorney-General Bruton for the State.\nJ. 11. Barefoot fox defendants, appellants." }, "file_name": "0382-01", "first_page_order": 432, "last_page_order": 437 }