State v. Turner, 3
| Decision Date | 21 September 1960 |
| Docket Number | No. 3,3 |
| Citation | 116 S.E.2d 194,253 N.C. 37 |
| Parties | STATE, v. Willard TURNER. |
| Court | North Carolina Supreme Court |
Proctor & Dameron, Marion, for defendant, appellant.
T. W. Bruton, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for State.
As to nonsuit, the crucial question is whether the evidence was sufficient to support the finding that the nontaxpaid whiskey found in defendant's home and in the tool box in his yard, in excess of eighteen gallons, was in defendant's possession, actual or constructive, or was kept on his premises with his knowledge and consent. If so, there was evidence sufficient to support defendant's conviction. State v. Avery, 236 N.C. 276, 72 S.E.2d 670; State v. Guffey, 252 N.C. 60, 112 S.E.2d 734.
Defendant relies largely on State v. Guffey, supra, in support of his contention that the court erred in overruling his motion for judgment of nonsuit. But in Guffey, according to the State's evidence (the defendant offered none), four adult persons, two who lived in the defendant's house and two outsiders, were present in the defendant's house when the search was made; and, under these circumstances, the officers found a half-gailon jar of nontaxpaid whiskey, with the lid off, in plain view. Apart from the fact that neither Guffey nor this defendant was at home when the search was made, the factual situation in Guffey is quite different from that here considered.
The only person actually on defendant's premises when the search was made was defendant's teen-age son, who was not offered as a witness. Defendant drove up before the officers had left his premises. Hoyle was not there when the search was made. There was no evidence as to when Hoyle was last in defendant's house or on his premises prior to 'about sundown' on the day of the search. Nor was there evidence as to when Hoyle returned to defendant's premises subsequent to the search. Hoyle testified that he 'went uptown to (his) sister's' after he had left the whiskey in defendant's house and in the tool box. He testified further that he did not know anything about 'it' (presumably the finding of the nontaxpaid whiskey) until the next day when he was told that 'they caught Willard.' The credibility of Hoyle's testimony to the effect that he had been in defendant's house and on his premises 'about sundown' on the day of the search was for jury determination.
The present case is quite different from State v. Hanford, 212 N.C. 746, 194 S.E. 481, cited by defendant, where nontaxpaid liquor was found in the private room of the defendant's tenant, an area of defendant's house over which his tenant had full control. Here the evidence tends to show that Hoyle, for a lack of a home elsewhere, was permitted (at least for 'a couple of weeks') to live in defendant's house. Nothing in the evidence supports the view that Hoyle had or attempted to exercise any right of control over any portion of defendant's house or premises.
The testimony tending to exonerate defendant comes from defense witnesses. The credibility of each of these witnesses and the weight to be given his testimony wrre matters for jury determination. State v. Avery, supra; State v. Harrison, 239 N.C. 659, 80 S.E.2d 481. It is noted that the testimony of defendant and of Hoyle was set forth, in our preliminary statement of facts, in the light most favorable to defendant. Suffice to say, the credibility of the testimony of each of these witnesses seems to have been somewhat impaired by the testimony of each on cross-examination.
Defendant's assignment of error directed to the court's refusal of motion for judgment of nonsuit is overruled.
Defendant assigns as error this portion of the charge:
'The Court instructs you that where a defendant goes upon the witness stand in his own behalf, or a near relative goes upon the witness stand in his behalf, that such witnesses are interested witnesses, interested in the outcome of your verdict, and it is your duty to very carefully sean and scrutinize the testimony of such witnesses in the light of their interest in the outcome of your verdict.'
Immediately thereafter the court gave this qualifying instruction:
'However, the Court specifically instructs you if after so doing you find that an interested witness is telling the truth, then you would give to the evidence of that witness the same weight and credit you would give to any other...
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