#### STATE v. CLYDE HARRISON.

(Filed 17 March, 1954.)

1. Intoxicating Liquor § 9d—

The State’s evidence that one quart of nontax-paid liquor was found in defendant’s 'home is sufficient alone to carry the case to the jury in a prosecution for the unlawful possession of nontax-paid whiskey, G.S. 18-48, notwithstanding defendant’s evidence that another occupied the room and that such other claimed the liquor, since defendant’s evidence on a matter of defense is not considered on motion to nonsuit.

2. Criminal Law § 52a (1) —

Evidence offered by defendant as a matter of defense is properly disregarded in passing upon defendant’s motion for involuntary nonsuit.

3. Constitutional Law § 19a—

The constitutional guaranties of freedom from unreasonable search and seizure relate to a person’s dwelling and other buildings within the curti-lage but do not apply to open fields, orchards or other lands not an immediate part of the dwelling site.

4. Searches and Seizures § .1: Criminal Law § 43'—

Evidence of the finding of nontax-paid liquor near defendant’s premises but actually on the land of another is not rendered incompetent because not discovered under authority of a search warrant, since a warrant is not necessary for its seizure. G.S. 15-27.

5. Intoxicating Liquor § 9c—

Evidence of the finding of nontax-paid liquor on the land of another but within 15 feet of a path which led from defendant’s home, with no other paths intersecting or joining it, is competent evidence of defendant’s constructive possession of such liquor, even though it is insufficient to make out a prima facie case, its weight and credibility being for the jury.

6. Criminal Law § 77c: Appeal and Error § 38—

Where the charge of the court is not included in the case on appeal, it will be presumed that it is free from error.

7. Searches and Seizures § 1: Intoxicating Liquor § 9c—

Testimony of officers that while looking through a window of defendant’s house on their way to serve a search warrant, they heard and saw incriminating matter, held not incompetent merely because the information was obtained before serving the warrant.

Appeal by defendant from Paul, Special Judge, October Term, 1953, of Edgecombe.

Tbe defendant was originally tried and convicted in the Eecorder’s Court of Edgecombe County upon a warrant charging him with the unlawful possession of nontax-paid whiskey. From the sentence imposed he *660appealed to tbe Superior Court of Edgecombe County where be was tried de novo on tbe original warrant.

Tbe State’s evidence tends to show tbat between ten and eleven o’clock on tbe night of 30 May, 1953, ABC enforcement officers, armed with a search warrant issued by a justice of tbe peace, went to tbe home of tbe defendant in tbe village of Mildred in Edgecombe County. The officers stayed in tbe yard of defendant’s home ten or fifteen minutes before entering tbe bouse. During tbat time they beard people walking on tbe front porch and in tbe bouse. Then some of tbe officers entered tbe bouse, executed tbe search warrant and searched tbe premises, finding approximately one quart of nontax-paid liquor in a cbiiforobe in one of tbe bedrooms. They also found two paper cups on a kitchen table, each cup bearing tbe odor of whiskey. One of the officers made a search outside tbe bouse and found a gallon jug of nontax-paid liquor near a barbecue pit used by tbe defendant. Tbe barbecue pit was located a very short distance from tbe edge of tbe defendant’s yard and approximately seventy-five yards from tbe bouse. A path ran directly from tbe defendant’s bouse to tbe barbecue pit and there were no other paths intersecting or joining it; tbe path went on just a bit beyond or behind the pit and then stopped. The gallon jug was found about fifteen feet from tbe path and approximately thirty feet behind tbe barbecue pit.

Before serving tbe search warrant, one of tbe officers testified tbat as a result of a conversation he beard about whiskey, be looked through a window of defendant’s bouse and observed tbe defendant in tbe kitchen cutting barbecue and beard a man ask to be served a quarter drink; tbat tbe defendant’s wife and two or three other men were present; tbat be saw tbe defendant’s wife leave tbe room, go in tbe bedroom where tbe nontax-paid liquor was later found, return to tbe kitchen and band a paper cup to tbe men who asked for a quarter drink; she went back to tbe room and came out with another cup which she banded to a man in tbe kitchen.

Tbe officers frankly admitted tbat they did not know who owned tbe premises where tbe gallon jug of nontax-paid whiskey was found.

Tbe State offered in evidence, over tbe objection of defendant, tbe two containers and their contents.

Tbe defendant offered evidence tending to show tbat be knew nothing about tbe liquor found on or near bis premises; tbat tbe liquor found in tbe bouse was owned by Clyde Staton and tbe other liquor found by tbe officers belonged to Clifford Harrison; tbat these two young men lived in tbe defendant’s home and occupied tbe room in which tbe quart of nontax-paid liquor was found. Clyde Staton testified tbat tbe liquor found in bis room belonged to him; Clifford Harrison testified tbat it was bis liquor, while both of them testified tbat tbe gallon of nontax-paid liquor *661found by tbe officers outside of tbe defendant’s borne belonged to Harrison and that it was not found on tbe premises of tbe defendant. Staton testified that it was found on tbe land of Mr. W. G. Clark, while Harrison testified be never brought it on tbe land of the defendant (who is bis brother), but placed it on another man’s land about twenty-five feet from tbe barbecue pit, across a fence. Tbe defendant’s wife denied that she banded anybody a quarter drink.

Tbe jury returned a verdict of guilty, and from tbe judgment pronounced tbe defendant appeals to tbe Supreme Court, assigning error.

Attorney-General McMulla-n and Assistant Attorney-General Love for ■the State.

Weelcs & Muse -for defendant, appellant.

Denny, J.

The only questions raised on this appeal, which in our opinion merit discussion, are these: (1) Was error committed in the court below in refusing to sustain the defendant’s motion for judgment as of nonsuit? (2) Did the court err in admitting evidence with respect to the discovery and seizure of the gallon jug, containing nontax-paid whiskey, when the officers admitted they did not know who owned the premises where it was found? (3) Did the court commit error in overruling the defendant’s motion to suppress all the evidence as to what was beard or seen after the officers reached the premises of the defendant, but before the search warrant was actually served ? In our opinion each one of these questions must be answered in the negative.

The defendant contends that bis motion for judgment as of nonsuit was erroneously overruled. We do not concur in this contention. Tbe ..State’s evidence established tbe undisputed fact that one quart of nontax-paid liquor was found in tbe home of tbe defendant. This evidence alone was sufficient to carry tbe case to tbe jury. G.S. 18-48; S. v. Avery, 236 N.C. 276, 72 S.E. 2d 670.

It is true that Clyde Staton claimed the liquor found in the room occupied by him and Clifford Harrison. The evidence also reveals that Clifford Harrison likewise claimed the ownership of this particular liquor as well as that found near the defendant’s barbecue pit. But they were witnesses for the defendant. Neither was any evidence offered on behalf of the State tending to show that Clyde Staton and Clifford Harrison occupied the room in the home of the defendant pursuant to a rental contract as was the case in S. v. Hanford, 212 N.C. 746, 194 S.E. 481, upon which the defendant relies. Moreover, in the Hanford case, the search warrant only authorized the officer to search the premises of one Lacey Scott who occupied a rented room in the home of the defendant Hanford. His room was searched and fifteen gallons of liquor found. the State *662offered no evidence tending to show that the officer searched the premises of the defendant Hanford or that he was authorized to do so. This Court held that the evidence tending to show the result of the search made was not incompetent but was insufficient to show that the whiskey found in the room which the defendant had rented to Lacey Scott was in the possession of the defendant Hanford and ordered a nonsuit as to him.

In the instant case, as pointed out in S. v. Avery, supra, the evidence offered by the defendant, as a matter of defense, may not be considered on a motion for judgment as of nonsuit. The defendant’s motion was properly overruled.

As to the second question posed, it is provided by statute that “no facts discovered or evidence obtained without a legal search warrant in the course of any search, made under conditions requiring the issuance of a search warrant, shall be competent as evidence in the trial of any action.” G.S. 15-21. In the instant ease, the officers were armed with a search warrant issued pursuant to the provisions of G.S. 18-13, authorizing and commanding them to search the defendant’s “dwelling, garage, filling station, barns, and outhouses, and premises, . . . Seizing all intoxicating liquors, containers, and other articles used in carrying on the illegal handling of intoxicating liquors.”

The defendant contends, however, that since the State failed to offer evidence tending to show that the gallon of nontax-paid liquor was found on his premises, the facts relating to its discovery and seizure, as well as the container and its contents, should have been excluded upon his objection which was duly and timely made.

It seems to be generally held that the constitutional guaranties of freedom from unreasonable search and seizure, applicable to one’s home, refer to his dwelling and other buildings within the curtilage but do not apply to open fields, orchards, or other lands not an immediate part of the dwelling site. Machen, The Law of Search and Seizure, page 95 (citing Hester v. United States, 265 U.S. 57, 44 Sup. Ct. 445, 68 L. Ed. 898); Cornelius, Search and Seizure, Second Edition, page 49; 48 C.J.S., Intoxicating Liquors, section 394, page 630, et seq 30 Am. Jur., Intoxicating Liquors, section 528, page 529; Anno. 74 A.L.R. 1454, where numerous cases on this point are collected, among them being: Simmons v. Commonwealth, 210 Ky. 33, 275 S.W. 369; S. v. Cobb, 309 Mo. 89, 273 S.W. 736; Penney v. State, 35 Okla. Crim. Rep. 151, 249 P. 167; Sheffield v. State, 118 Tex. Crim. Rep. 329, 37 S.W. 2d 1038; Field v. State, 108 Tex. Crim. Rep. 112, 299 S.W. 258. So, if it be conceded that the gallon of nontax-paid liquor involved in the present case was found near the premises of the defendant but actually on the land of another and not within the curtilage of the dwelling of the owner thereof, a search *663warrant was not necessary for its seizure and the admissibility of evidence with respect thereto.

The facts and circumstances incident to the discovery and seizure of the gallon of nontax-paid liquor, together with the uncertainty as to whether it was actually found on the premises of the defendant, or within a few yards thereof, went to its weight and credibility but not to its admissibility.

The possession of nontax-paid liquor in any quantity, in this State, is unlawful. G.S. 18-48; S. v. Barnhardt, 230 N.C. 223, 52 S.E. 2d 904. Therefore, if the State had offered evidence to the effect that the gallon of nontax-paid liquor had been found on the premises of the defendant, such evidence would have made out a prima- facie case had no other nontax-paid liquor been found on the defendant’s premises. S. v. Camel, 230 N.C. 426, 53 S.E. 2d 313; S. v. Medlin, 230 N.C. 302, 52 S.E. 2d 875; S. v. Weston, 197 N.C. 25, 147 S.E. 618; S. v. Meyers, 190 N.C. 239, 129 S.E. 600; S. v. Crouse, 182 N.C. 835, 108 S.E. 911. But, the evidence of the State being uncertain in that respect, no prima facie case was made out by the evidence as to its discovery and seizure. Even so, a path led from the defendant’s home to within fifteen feet from where the gallon of nontax-paid liquor was found and there were no other paths intersecting or joining it. Consequently, under these circumstances we think the evidence was admissible on the question of possession. S. v. Crouse, supra. Possession in such cases is not required to be actual, but may be constructive. S. v. Parker, 234 N.C. 236, 66 S.E. 2d 907; S. v. Weston, supra; S. v. Meyers, supra; S. v. Ross, 168 N.C. 130, 83 S.E. 307; S. v. Lee, 164 N.C. 533, 80 S.E. 405.

The charge is not included in the case on appeal. It is, therefore, presumed to be free from error and that the jury was properly instructed as to the law arising upon the evidence as required by statute. G.S. 1-180; S. v. Weston, supra.

The defendant excepts and assigns as error the failure of the court to suppress all the evidence as to what the officers saw and heard after they reached the defendant’s premises but before the search warrant was served.

While we do not approve of officers peeping through a window in a private dwelling in an effort to obtain additional evidence before serving a search warrant which had theretofore been issued for the express purpose of searching such premises, nevertheless, evidence as to what an officer, armed with a search warrant, saw or heard after entering upon such premises and before serving the warrant, if such evidence is otherwise admissible, may not be excluded merely because the officer obtained such information before serving the warrant. This assignment of error is without sufficient merit to justify a new trial.

*664We have carefully considered the remaining exceptions and in our opinion the verdict and judgment of the court below should be upheld.

No error.