State v. Weston

• Decision Date: 10 April 1929
• Docket Number: 273.
• Citation: 147 S.E. 618,197 N.C. 25
• Parties: STATE v. WESTON.
• Court: North Carolina Supreme Court

147 S.E. 618

197 N.C. 25

STATE v. WESTON.

No. 273.

Supreme Court of North Carolina

April 10, 1929

Appeal from Superior Court, Brunswick County; E. H. Cranmer, Judge.

Ed Weston was convicted of possessing intoxicating liquor, and he appeals. No error. This is a criminal action in which the defendant is charged with the unlawful possession of intoxicating liquor, in Brunswick county, on or about May 11, 1928. There was a verdict of guilty. From judgment on the verdict, defendant appealed to the Supreme Court.

Newman & Sinclair, of Wilmington, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.

CONNOR J.

Defendant was convicted in the recorder's court of Brunswick county upon a warrant charging him with the unlawful possession of intoxicating liquor. He appealed from the judgment on said conviction to the superior court of said county. From the judgment on the verdict at the trial in the superior court he has appealed to this court. He relies here chiefly upon his assignment of error, based on his exception to the refusal of the trial court to allow his motion for judgment of nonsuit, aptly made under C. S. § 4643.

Assignments of error based on exceptions to the rulings of the court with respect to the evidence have been duly considered. These assignments present no questions which require discussion they cannot be sustained. No authorities are cited in defendant's brief in support of his exceptions. The testimony of witnesses that the tracks on and about defendant's premises were similar to the tracks on the path, and at the stills, was competent. The similarity of the tracks was a fact, observable by the witnesses; their testimony was the result of a mental conclusion made by them at the time and is a "shorthand" statement of such conclusion. State v. Holland, 193 N.C. 713, 138 S.E. 8; Moore v. Ins. Co., 192 N.C. 580, 135 S.E. 456; State v. Walton, 186 N.C. 485, 119 S.E. 886; State v. Leak, 156 N.C. 643, 72 S.E. 567. The witnesses were, of course, subject to cross-examination for the purpose of testing the probative value of their testimony.

There is no exception in the record to the charge of the court to the jury. The charge is not included in the case on appeal. It is, therefore, presumed that the charge is free from error, and that the jury was properly instructed as to the law arising upon the evidence, as required by statute. C. S. § 564; State v. Sigmon, 190 N.C. 684, 130 S.E. 854, and cases therein cited.

The only question presented for decision which seems to require discussion is whether the evidence was sufficient, as a matter of law, for submission to the jury, as tending to show, as a matter of fact, that the defendant had intoxicating liquor in his possession, actual or constructive, in Brunswick county, or on about May 11, 1928, in violation of the statute. Possession, either actual or constructive, is sufficient. State v. Lee, 164 N.C. 533, 80 S.E. 405.

There was evidence tending to show that on the morning of May 11, 1928, certain officers went upon defendant's premises in Brunswick county to search for stolen property; that no stolen property was found on said premises; that while making said search, the officers found in the smokehouse on said premises a pair of boots; that these boots were wet, and had "mash" on them, indicating that they had been recently used by some person at a whisky still; and that defendant owned these boots, and frequently used them, while walking about his premises and about the neighborhood.

There was evidence, also, tending to show that there were tracks, made by some person wearing boots, on and about defendant's premises, and on a path leading from the road, which runs by said premises, through the woods, to a creek, a distance of about a quarter of a mile; that just across the creek, on the side opposite defendant's premises, there were two whisky stills; and that about these stills there were boot tracks, indicating by their appearance that they had been recently made. All the boot tracks, those on defendant's premises, those on the path, and those at the stills, were fresh. Witnesses testified that in their opinion all these tracks were made by the same person wearing the boots found in the smokehouse on defendant's premises, and owned by him.

The evidence tended to show, further, that at a distance of about 30 or 35 yards from defendant's premises, on or near the path along which there were boot tracks leading from said premises, the officers found two hot-water bottles; these bottles were in a hole, covered up by fresh dirt and by grass. There was an odor of whisky about these bottles; there was no whisky, however, in them, when they were found by the officers. Fifteen feet from the hot-water bottles, a witness found a half-gallon jug. Following the tracks on the path to a landing on the creek, a witness found, near the landing, sacks containing half-gallon jars, filled with whisky. The jars contained more than seven gallons of whisky. Just across the creek, from the landing, were two whisky stills. In addition to the fresh boot tracks found at the still and along the path leading from the stills to defendant's premises, there were older tracks. Both the old and the fresh tracks appeared to have been made by the same person.

Defendant was not at his home when the officers first arrived there; he came up, however, within about 30 minutes after they arrived. He came from a direction opposite the path leading to the whisky still. He testified that he had been to Wilmington to see his son, who was sick and in a hospital; that he had not been on the path where the tracks were found by the officers within two or three days; that he had not been to the...