State v. Thompson, 721
| Decision Date | 28 March 1962 |
| Docket Number | No. 721,721 |
| Citation | 124 S.E.2d 728,256 N.C. 593 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. Mack B. THOMPSON. |
Walter D. Barrett, Graham, M. Hugh Thompson and William A. Marsh, Jr., Durham, for defendant, appellant.
Atty. Gen., Thomas W. Bruton and Asst. Atty. Gen., H. Horton Rountree for the State.
The only assignment of error brought forward and discussed in defendant's brief is based on his exception to the overruling of his motion for judgment as in case of nonsuit. Hence, all other assignments of error are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, 810.
The only question presented by a motion under G.S. § 15-173 for judgment as in case of nonsuit is whether the evidence is sufficient to require submission to the jury. State v. Green, 251 N.C. 40, 110 S.E.2d 609. In passing on such motion, 'the evidence is to be considered in the light most favorable to the State, and the State is entitled to the benefit of every reasonable intendment thereon and every reasonable inference to be drawn therefrom.' State v. Corl, 250 N.C. 252, 108 S.E.2d 608.
Clearly, if the twenty-one pints of whiskey were in the actual or constructive possession of defendant, there was ample evidence to support the verdict. G.S. § 18-32; State v. Rogers, 252 N.C. 499, 114 S.E.2d 355, and cases cited.
Defendant contends the evidence is insufficient to support a finding that the twenty-one pints of whiskey were in defendant's constructive possession.
As to what constitutes constructive possession, Varser, J., in State v. Meyers, 190 N.C. 239, 129 S.E. 600, said: 'If the liquor was within the power of the defendant, in such a sense that he could and did command its use, the possession was as complete within the meaning of the statute as if his possession had been actual.' This statement has been quoted with approval in later cases, e. g., State v. Harrelson, 245 N.C. 604, 606, 96 S.E.2d 867. It is stated in State v. Taylor, 250 N.C. 363, 366, 108 S.E.2d 629, 632: '* * * if nontaxpaid whiskey is on a person's premises, with his knowledge and consent, he has constructive possession thereof while it remains on premises under his exclusive control.'
Even so, defendant contends the circumstantial evidence upon which the State relies is insufficient to show defendant had constructive possession of the twenty-one pints of whiskey in that the facts shown are not inconsistent with defendant's innocence.
In State v. Stephens, 244 N.C. 380, 383, 93 S.E.2d 431, 433, this Court, in opinion by Higgins, J., said: ...
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