#### STATE v. BURT GRAINGER.

(Filed 2 December, 1953.)

1. Intoxicating Liquor § 9cl—

Evidence tending to show that defendant is a married woman and was living in a bouse with a man, and that nontax-paid liquor was found 30 or 45 yards from tbe bouse, is insufficient to be submitted to the jury in a prosecution for unlawful possession of tbe nontax-paid liquor and possession of such liquor for sale, even though such liquor was in tbe constructive possession of tbe occupants of tbe bouse, since tbe evidence leaves in speculation whether defendant or the other occupant of tbe bouse was in possession of the liquor.

2. Criminal Law § 52a (3) —

A defendant may not be convicted of an offense upon proof of facts consistent with guilt, but tbe circumstances must be inconsistent with bis innocence.

Appeal by defendant from Burney, *J.,*September Term, 1953, of Columbus.

Tbe defendant was tried and convicted in tbe Eeeorder’s Court of Columbus County upon a warrant charging her with tbe unlawful possession of nontax-paid intoxicating liquor and of having such liquor for tbe purpose of sale. From tbe judgment imposed the defendant appealed *to*tbe Superior Court where she was tried *de novo*upon tbe original warrant.

Tbe evidence tends to show tbe following facts:

1. That on 11 April, 1953, tbe defendant, Burt Grainger, was living-in a bouse on a dirt road about a mile-and a half from Tabor City and about two or three hundred yards from tbe bard surfaced highway. Three families lived on this neighborhood road. Tbe dirt road in front of defendant’s bouse is approximately fifteen feet wide. Tbe bouse is located about fifteen or sixteen feet from tbe road. Tbe nearest dwelling bouse to that of defendant is located about one hundred *to*one hundred and fifty yards away.

2. That on tbe above date two deputies sheriff of Columbus County went to tbe home of tbe defendant armed with a search warrant. No one *740was at the bouse but defendant and two small girls. Tbe officers searched the house and found eight or ten fruit jar cases in the house. There were cases for pints, quarts and half-gallon jars. There were jars in some of them. Some of the empty cases were found in a bedroom; one or two cases contained canned fruit and possibly some string beans. No whiskey was found in the house nor upon her side of the road.

3. The officers then went outside the house and followed a path that led across the road to a toilet and found two pint jars containing nontax-paid whiskey about two or three feet from the path and about four or five feet from the road. The officers then followed a path or paths that led from the road into a wooded area and found fourteen half-gallon fruit jars of intoxicating nontax-paid liquor. These jars were found about thirty to forty-five yards from the defendant’s house; that when defendant was told about the liquor she said she didn’t know whose it was.

4. The. officers testified that they did not know at the time they searched the defendant’s home that she was married; that they did see a marriage certificate later and that a man was living in the house at the time the search was made but was not present at the time.

From a verdict of guilty on both counts and the judgment imposed thereon, the defendant appeals and assigns error.

*Attorney-General McMvllan, Assistant Attorney-General Moody, and Gerald F. White, Member of Staff, for the State.*

*Irvin B. Tuclcer, Jr., for defendant, appellant.*

DjsnNY, J.

The sole exception and assignment of error is to the refusal of the court below to sustain her motion for judgment as of nonsuit.

The evidence does not disclose who owned the premises where the liquor was found as it did in *S. v. Meyers,*190 N.C. 239, 129 S.E. 600. Neither does it show that the defendant had been seen in the area across the road from her home where the liquor was found as was the case in *S. v. Shinn, ante,*535, 78 S.E. 2d 388. The evidence with respect to the location of the privy or toilet tends to show, however, that the area upon which it was located was in the possession of the occupants of the home. Even so, the facts here are distinguishable from those in *S. v. Medlin,*230 N.C. 302, 52 S.E. 2d 875; *S. v. Weston,*197 N.C. 25, 147 S.E. 618; *S. v. Clark,*183 N.C. 733, 110 S.E. 641; and *S. v. Crouse,*182 N.C. 835, 108 S.E. 911, cited and relied upon by the State.

The State’s evidence tends to show that the defendant was married and living with her husband, or at least that a man was living in the home at the time the whiskey was discovered. Did the whiskey belong to the defendant or to this man, whoever he was ? Doubtless, the officers had a reason for charging the defendant with the possession of the whiskey but *741the evidence presented for our review does not disclose it. Therefore, on this record we do not think the evidence goes any further than to raise a suspicion or conjecture with respect to the defendant’s guilt. *S. v. Prince,*182 N.C. 788, 108 S.E. 330. “The guilt of a person charged with the commission of a crime is not to be inferred merely from facts consistent with his guilt. They must be inconsistent with his innocence.” *S. v. Webb,*233 N.C. 382, 64 S.E. 2d 268.

The judgment of the court below is

Reversed.