State v. Herndon

• Decision Date: 19 May 1943
• Docket Number: 655.
• Parties: STATE v. HERNDON.
• Court: North Carolina Supreme Court

25 S.E.2d 611

223 N.C. 208

STATE v. HERNDON.

No. 655.

Supreme Court of North Carolina

May 19, 1943

Criminal action tried upon indictment, charging Mrs. Edith Herndon Avery Fairfax and Charlie Herndon of unlawfully and wilfully maintaining and operating a place, structure and building for the purpose of prostitution and assignation, etc.

Verdict Guilty. Judgment as to the appealing defendant: Eighteen months in jail to be assigned to work under the direction of the State Highway and Public Works Commission.

Defendant Charlie Herndon appeals, assigning error.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

John H. Cook and Malcolm McQueen, both of Fayetteville, for defendant.

DENNY Justice.

The defendant does not contend that the evidence adduced at the trial was insufficient to show that the premises were used for the purpose of prostitution and assignation. The buildings are located across the hard-surface road from the residence occupied by the defendant and his wife, Edith Herndon, and consists of one central building, known as Herndon's Service Station, and seven cabins.

The evidence disclosed that Charlie Herndon did operate the service station and cabins several months prior to the date in question, June 14th, 1942. Later the cabins were being operated by Mrs. Herndon and the service station was closed. This defendant was present at least part of the time while the cabins were being searched by the officers on June 14th, 1942, made inquiry as to the search warrant, and, according to the testimony of one of the officers, the defendant told him two or three times before and since the raid that he wanted to sell the property and was trying to sell it. The State introduced a mortgage deed executed by the defendant and his wife, Edith Herndon, to the State of North Carolina, on the premises in question, for a bond in the sum of $300, dated June 23, 1942, which instrument had been duly recorded in Robeson County, N.C.

Defendant assigns as error the refusal of his Honor to grant his motion for judgment as of nonsuit. On motion for judgment as of nonsuit, the evidence must be considered in the light most favorable to the State. State v. McKinnon, N.C., 25 S.E.2d 606; State v. King, 219 N.C. 667, 14 S.E.2d 803; State v. Brown, 218 N.C. 415, 11 S.E.2d 321; State v. Hammonds, 216 N.C. 67, 3 S.E.2d 439.

The fact that defendant's wife may have been the manager and operator of the cabins would not constitute a defense for the defendant, if he, as owner, permitted the property to be used in the manner set forth in C.S. § 4358, which reads in part as follows: "It shall be unlawful: *** For any person to permit any place, structure, building or conveyance owned by him or under his control to be used for the purpose of prostitution or assignation, with knowledge or reasonable cause to know that the same is, or is to be, used for such purpose."

We think the evidence as to ownership and knowledge on the part of this defendant of the purpose...