State v. Fowler

• Decision Date: 10 January 1934
• Docket Number: 542.
• Citation: 172 S.E. 191,205 N.C. 608
• Parties: STATE v. FOWLER et al.
• Court: North Carolina Supreme Court

172 S.E. 191

205 N.C. 608

STATE v. FOWLER et al.

No. 542.

Supreme Court of North Carolina

January 10, 1934

Appeal from Superior Court, Forsyth County; Sink, Judge.

Clyde Fowler and Fred Brincefield were convicted of dealing in a lottery, and they appeal.

Reversed as to defendant Brincefield.

No error as to defendant Fowler.

On the morning of May 25, 1933, about the hour of 9:30 a. m., a number of deputies sheriff of Forsyth county, armed with a search warrant, entered a house just outside the city limits of Winston-Salem and found the defendants, together with their wives, in the front room. There was no one else in the house except one or two small children. The defendant Fowler said the house was rented by him and that he had been living there a month or six weeks. The defendant Brincefield said he lived on Fourth street in Winston-Salem, and that he had only been there a short time, about fifteen minutes.

In searching the premises, to which no objection was interposed the officers found in a closet and an outhouse, or chicken house, certain tickets, paraphernalia, and material used in the operation of a lottery.

The defendants demurred to the state's evidence, and rested.

Verdict Guilty as to each of the defendants.

Judgment Six months on the road as to each of the defendants.

The defendants appeal, assigning errors.

John D. Slawter, of Winston-Salem, and Sanford W. Brown, of Asheville, for appellants.

Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell and T. W. Bruton, Asst. Attys. Gen., for the State.

STACY Chief Justice.

The evidence is sufficient to carry the case to the jury as against the defendant Fowler. Hence the verdict and judgment will be upheld as to him.

But, with respect to the defendant Brincefield, the evidence does no more than raise a suspicion, somewhat strong perhaps, of his guilt. Therefore the demurrer to the evidence will be sustained as to him. State v. Carter, 204 N.C. 304, 168 S.E. 204.

The defendants assail the constitutionality of chapter 434 Public Laws 1933, amending C. S. § 4428, which makes the possession of tickets, certificates, or orders used in the operation of a lottery prima facie evidence of a violation of said section, but the connection between the fact proved and the ultimate fact presumed seems to be a rational one; hence the objection must fail. State v. Russell, 164 N.C. 482, 80 S.E. 66; State v. Wilkerson, 164 N.C. 431...