#### STATE v. TOM R. PIERCE.

(Filed 31 December, 1926.)

1. Intoxicating Liquor — Spirituous Liquor — Evidence—Nonsuit—Motions.

Evidence in tbis case tending to show that the defendant lived in a part of his filling station used as a residence, where was found a quantity of empty bottles smelling of whiskey, and that in the vicinity was a used roadway leading to several places where cartons with bottles of whiskey were concealed, etc.: *Held,*suflicient to deny defendant’s motion as of nonsuit. 3 C. S., 3411(b), (j).

*7672. Evidence — Nonsuit—Criminal Law.

Upon a motion as of nonsuit upon tlie evidence in a criminal case, tlie evidence is to be taken in tbe light most favorable to tbe State, with all reasonable inferences therefrom resolved in its favor.

3. Intoxicating Eiquor — Spirituous Liquor — Prima Eacie Case — Evidence —Constructive Possession.

A prima facie case of the unlawful sale of intoxicating liquors may be established by circumstances sufficient to show that the defendant had in his constructive possession large quantities of whiskey not on his premises, in the possession of others who held it for him.

4. Instructions — Criminal Law — Burden of Proof — Charge Construed as a Whole.

An instruction in a “criminal case will not be held for prejudicial or reversible error for failing in one part of the charge to place the burden of proof on the State to show guilt beyond a reasonable doubt, when in the same connection, and by another portion of the charge, this requirement is clearly given.

5. Instructions — Words and Phrases.

The use of the words “proven by the testimony” for the words “warranted by the testimony,” is not subject to just criticism by the defendant in a criminal case, when used in the charge by the judge to the jury in relation to the degree of proof required of the State to c.onvict.

Appeal from *Grcmmer, J.,*and a jury, at August Term, 1926, of 'WayNE. No error.

Tbe defendant was indicted for baving in bis possession, on or about 19 June, 1926, about sixty pints of wbistey for tbe purpose of sale. Tbe defendant operated a filling station on tbe Ealeigb hard-surfaced' highway, No. 10, about a mile from tbe city limits of Goldsboro. From information received, L. O. Ebodes, deputy sheriff of Wayne County, obtained under tbe law a search warrant. He, with tbe sheriff’s son, went to Pierce’s premises .to-search, and informed him of tbe warrant. Tbe search was made. (1) Ebodes found in tbe store a pint bottle with half teaspoon of liquor in if, (2) under the store, where defendant kept bis car, be found a box containing fifteen or twenty empty pint bottles sitting on tbe running board of defendant’s car, similar to tbe one found in tbe store; (3) be saw tracks leading from tbe filling station, which be followed to a ditch, and there found a Big Boy carton with cells in it that bold tbe bottles apart. “One bad a tiny bit of liquor, a pint bottle just like tbe other one I found.” That was seventy (66) feet from tbe corner post of tbe filling station. He followed tbe ditch on down directly back of tbe store and (a) found another paste-board carton in a sack with no bottles in it, but three jug stoppers in it. Same kind of carton found at tbe other place. Eobuck *768
      *(W.*P. Grant), wbo was witb bim, called “Come over here; bere it is,” and be found (b) two cases, one full and a part- of a case, same as other pasteboard carton witb letters on tbe side of it. One full case of whiskey, twenty-four pints, and tbe other six or seven pints bad been taken out; (c) another case in a sack, same kind, (d) Then another carton practically full of whiskey, a bole torn in tbe top, same kind of bottles. He kept going a little further until six cartons on that side, and be bad two, making eight — in all sixty-five pints. Defendant was witb bim during tbe search.

Rhodes testified further: “When I started to tbe first place where I found tbe carton, I said, ‘All these bottles look bad,’ and be (defendant) said, ‘I can’t help that, people come bere and drink whiskey and throw tbe bottles- over tbe fence, and I can’t help it.’ They were scattered between tbe filling station and tbe ditch; emptied and thrown out there. I don’t know bow many we found scattered; I reckon some ten or twelve were out there.” Tbe search was made about 4 o’clock Saturday evening.

*W.*P. Grant, a deputy sheriff, testified in part: “I went under tbe store. I first lifted up a bundle of broom straw and found a case of empty bottles. I set them on tbe running board of Tom Pierce’s car. These bottles bad tbe odor of whiskey in them. Tbe bottles were all pint bottles, twenty-four to tbe case.” He corroborated Rhodes in other particulars.

' Tbe distance from tbe store to tbe place Rhodes found tbe carton was twenty-two yards and about fifty-one yards to where tbe first case of other liquor was found. A path leading to each place and tbe whiskey was under some briars at ends of tbe paths. Tbe liquor found was across tbe road from tbe filling station. Defendant used tbe back of tbe store or filling station as a residence.

H. L. Bizzell testified in part: Tbe last- part of May, about 7 or 8 o’clock in tbe morning, before tbe search in June, “I was coming from towards Kenly into tbe highway No. 10, and in just about a hundred or a hundred and fifty yards of bis place I saw a man banding Pierce jugs, and be was putting them in sacks, and I thought to myself it never would do to ruñ right up on them, and I blew my born good and loud, and they done just like a worm in hot ashes; they just went all down over it. . . . He went over tbe sack and down to tbe ground, both men did, and I was going on No. 10, and a car was coming, and I couldn’t look to see what they did, but that was what happened. I did not recognize tbe other man, but Pierce was standing in front taking tbe jug and putting it into tbe tow-bag. There was only one man banding those jugs to Tom Pierce. I saw bim band Pierce tbe third jug. That *769man was driving a Ford automobile; it looked like be got tbe jug from tbe back of tbe car. Tbis car came up to tbe filling station from tbe same way I did, and was very near tbe door — about six or eight feet from tbe door.”

*Attorney-General Brummitt and Assistant. Attorney-General Nash for the State.*

*J. Faison Thomson, Outlaw & Dortch and Murray Allen for defendant.*

ClaeksON, J.

Tbe defendant introduced no evidence, but at tbe close of the State’s evidence moved for judgment of nonsuit. C. S., 4643. Tbe court below overruled tbe motion. In tbis we think there was no error. On a motion to nonsuit, tbe evidence is to be taken in tbe light most favorable to tbe State, and it is entitled to tbe benefit of every reasonable intendment upon tbe evidence, and every reasonable inference to be drawn therefrom. We think there was more than a scintilla of evidence, and tbe evidence, both direct and circumstantial, amply sufficient to be submitted to tbe jury. *S. v. Sigmon,*190 N. C., p. 684.

In *S. v. Meyers,*190 N. C., p. 239, *Varser, J.,*writing for tbe Court, citing many authorities, says: “Possession usually implies detention or control, or tbe right thereto. Tbe possession may be in one person for another, or in one for several, or in several for another, or for themselves, and others not actually present, or however distant from tbe whiskey itself. Possession is tbe retention or enjoyment of a thing which a man bolds or exercises by himself or by another who keeps or exercises it in bis name. . . . Tbe possession may, within tbis statute, be either actual, or constructive. ... If a man procures another to obtain liquor for him and put it in a given place, and tbe other performs tbis agreement and places tbe liquor, then tbe possession is complete. A person may be in tbe possession of tbe article which be has not at tbe moment about bis person. Tbe Turlington Act ‘shall be liberally construed to tbe end that tbe use of intoxicating liquor as a beverage may be prevented.’ There tbe constructive possession, as well as tbe actual possession, is in tbe contemplation of tbe statute.”

Public Laws 1923, chapter 1, known as tbe Conformity or Turlington Act, sec. 2, 3 C. S., 3411(b), says: “No person shall manufacture sell, barter, transport, import, export, deliver, furnish, purchase, or possess any intoxicating liquor except as authorized in tbis act; and all tbe provisions of tbis act shall be liberally construed to tbe end that tbe use of intoxicating liquor as a beverage may be prevented,” etc. Section 10, 3 C. S., 3411(j), is as follows: “Tbe possession of liquor *770by any person not legally permitted under tbis act to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of iu violation of the provisions of this act. But it shall not be unlawful to possess liquor in one’s private dwelling while the same is occupied and used by him as his dwelling only, provided such liquor is for use only for the personal consumption of the owner thereof, and his family residing in such dwelling, and for his bona fide guests when entertained by him therein.”

The defendant occupied and used the rear of the filling station as his private dwelling. The court below, on this aspect, charged the jury as follows: “Prima facie evidence means that evidence which is received and accepted and continued until the contrary is shown, and you gentlemen of the jury will remember the evidence, giving the State of North Carolina a fair and an impartial trial, and *giving*the defendant at bar a fair and an impartial trial.” This instruction, standing alone, may be subject to some criticism *(S. v. Wilkerson,*164 N. C., p. 431), but in this immediate connection the judge charged the jury as follows: “Now the State has the duty of satisfying you beyond a reasonable doubt of the guilt of the defendant. A reasonable doubt is an honest, substantial misgiving generated by insufficient proof, insufficiency which fails to satisfy your reason of the guilt of the accused. A reasonable doubt is not a doubt suggested by ingenuity of counsel or by your own ingenuity not legitimately proven by the testimony. It is not a doubt to permit the defendant to escape the penalty of the law. It is not a possible doubt, an imaginary doubt or a captious doubt, but it is a fair doubt, based upon reason and common sense and growing out of the evidence in the case.” Taking the instruction in its entirety, we think it should be upheld. *McDaniel v. R. R.,*190 N. C., at p. 475.

If he had possession of liquor as disclosed by this record it was prima facie evidence that he had it for sale. If not in his private dwelling, if he had actual constructive possession, whether for sale or not, it is a violation of law. 3 C. S., 3411(b) (j); *S. v. McAllister,*187 N. C., 400; *S. v. Knight,*188 N. C., 630.

It will be noted that section 10 has reference to the liquor “m *one’s private dwelling while the same is occupied and used by him as his dwelling only.”*Defendant cannot complain of the charge. There was sufficient direct and circumstantial evidence to be submitted to the jury, taking into consideration the testimony of Bizzell, that defendant had possession of liquor — not in his private dwelling. *S. v. Bradsher,*188 N. C., 447 ; *S. v. Sigmon, supra.*

The charge of reasonable doubt is substantially that approved in *S. v. Steele,*190 N. C., at p. 512. See *S. v. Sigmon, supra.*The use of *771“proven by tbe testimony” for tbe words “warranted by tbe testimony,” is a distinction without a difference, to warrant tbe testimony there must be proof. Leaving out tbe words “born of a merciful inclination or disposition” seems to be more favorable to tbe defendant. It emphasizes tbat when warranted by proof merciful inclination or disposition should not supplant law.

On tbe entire record we can find no prejudicial or reversible error.

No error.