#### STATE v. ARVILLE LOVE.

(Filed 29 October, 1952.)

1. Intoxicating Liquor § 9d—

Evidence tending to sliow only that a bus driver gave defendant tbe key to tbe rear baggage compartment of tbe bus, and that at defendant’s destination a bag containing intoxicating liquor was found in tbe baggage compartment, without identification of the bag as tbe one carried by defendant and without testimony that anyone saw defendant put tbe bag in tbe compartment, *is held*insufficient to fix defendant with ownership or possession of the liquor found in the baggage compartment.

2. Criminal Law § 52a (2) —

Evidence which does no more than raise a strong suspicion of guilt is insufficient to be submitted to the jury.

3. Criminal Law § 52b—

The withholding by the court from the jury of one of the counts in the bill of indictment has the effect of a directed verdict of not guilty upon that count, and amounts to an acquittal thereon.

4. Intoxicating Liquor §§ 4a, 9d—

Evidence tending to show only that defendant transported in a bus from a county having liquor stores to a dry county one gallon of tax-paid liquor with seals unbroken is insufficient to show unlawful transportation, it being legally established that the transportation was not for the purpose of sale. G.S. 18-49.

5. Criminal Law § 62f—

Where the evidence is insufficient to show a violation of the prohibition laws it cannot sustain a finding that defendant had violated the terms of a suspended sentence in that regard, and the order of the court executing the sentence must be reversed.

Appeal by defendant from *Sink, J.,*at June Special Term, 1952, of Watauga.

Tbe bill of indictment charged tbe defendant witb (a) tbe unlawful possession of intoxicating liquors for tbe purpose of sale, (b) tbe unlawful *345possession of intoxicating liquors for beverage purposes, and (e) tbe unlawful transportation of intoxicating liquors.

Tbe evidence of tbe State consisted of tbe testimony of two witnesses. Roger Parker, a member of tbe State Highway Patrol, testified tbat on 4 February, 1952, in consequence of some information be bad, be and another patrolman stopped a bus en route from Newton to Boone on Highway 421. He and tbe bus driver opened tbe baggage compartment at tbe rear of tbe bus and there discovered a small canvass bag and by feeling tbe bag could tell it contained pint bottles of some type. He got on tbe bus and rode to Boone. He did not see tbe defendant on tbe bus, but upon reaching Boone saw tbe defendant at bis cab stand near tbe bus station. He went over to tbe defendant and questioned him concerning tbe presence of liquor on tbe bus. Tbe defendant readily admitted to tbe patrolman tbat be bad purchased eight pints of liquor in Newton and because be understood it was against tbe law to transport liquor in a taxi bad placed tbe liquor inside tbe bus in tbe rack above tbe driver’s seat. Tbe patrolman then in company with tbe sheriff went inside tbe bus and found a small cloth handbag containing eight pints of liquor in tbe rack where tbe defendant said be bad placed tbe liquor be bad purchased. Tbe bag in tbe outside rear baggage compartment was then examined and found to contain eight pints of liquor. Tbe defendant did not claim tbe liquor discovered in tbe rear baggage compartment. Tbe seals bad not been broken on any of tbe bottles. Tbe liquor in one bag showed tbat it bad been purchased in Hickory at one time, while tbe labels on tbat in tbe other bag indicated tbat it bad been purchased in Newton at another time. Tbe stamps on tbe liquor disclosed tbat all of it bad been purchased at authorized ABO stores. Neither bag contained a baggage check or an identification tag of any kind. Tbe defendant lives in Boone and drives a taxicab.

Tony Tucker, tbe bus driver, testified in part tbat on tbe day in question be saw tbe defendant at tbe bus station at Newton and tbat tbe defendant said to him, “I have one piece to go to Boone.” Tbe driver then pitched to tbe defendant tbe key to tbe rear baggage compartment and went into tbe bus station. When be came back to tbe bus, be found tbe key lying in front of bis seat in tbe bus. Tbe driver did not see tbe defendant put anything in tbe rear baggage compartment, and at tbe time tbe defendant spoke to tbe driver, be bad only one bag in bis band. Tbe driver could not remember tbe color of tbe bag and could not identify which of tbe bags tbe defendant bad in bis band when be threw him tbe key.

Tbe defendant offered no evidence, and bis motion for judgment as of nonsuit was overruled.

*346The trial judge submitted the ease to the jury only upon the counts charging him with the unlawful possession of intoxicating liquors for beverage purposes and with the unlawful transportation of liquor. The jury returned a verdict of guilty.

The defendant was under a jail sentence of 90 days which had been suspended upon condition that he not violate any of the liquor law's of the State for a period of two years.

The presiding judge entered judgment upon the verdict of the jury and found as a fact under the judgment so pronounced that the defendant had violated the terms of the suspended sentence and ordered that capias and commitment issue for the defendant activating said suspended sentence.

From the judgment and the order, defendant excepted and appealed, assigning errors.

*Attorney-General McMullan, Assistant Attorney-General Bruton, and Edward B. Hipp, Member of Staff, for the State.*

*Trivette, Holshouser & Mitchell for defendant, appellant.*

YaleNtiNe, J.

The evidence was insufficient to fix the defendant with the ownership or possession of the eight pints of liquor found by the officers in the fear baggage compartment. The bus driver did not see the defendant open the compartment, did not see him place anything in the compartment, and could not identify the bag as the one he had seen in the possession of the defendant. Evidence which does no more than raise a strong suspicion is not sufficient. *S. v. Carter,*204 N.C. 304, 168 S.E. 204; *S. v. Watts,*224 N.C. 771, 32 S.E. 2d 348; *S. v. Kirkman,*224 N.C. 778, 32 S.E. 2d 328; *S. v. Murphy,*225 N.C. 115, 33 S.E. 2d 588; *S. v. Heglar,*225 N.C. 220, 34 S.E. 2d 76. Substantial evidence, more than a scintilla, is required to create a case for the jury in a criminal prosecution.

It should be noted that the trial judge withheld from the jury the count in the bill charging the defendant with the unlawful possession of liquors *for the purpose of sale.*This action by the court had the effect of a directed verdict of not guilty upon that count. This principle has been applied many times in cases where the jury finds a defendant guilty on one count and says nothing concerning other counts in the indictment. Such a verdict amounts to an acquittal upon the counts not referred to. *S. v. Taylor,*84 N.C. 773; *S. v. Fisher,*162 N.C. 550, 77 S.E. 121; *S. v. Hampton,*210 N.C. 283, 186 S.E. 251; *S. v. Choate,*228 N.C. 491, 46 S.E. 2d 476.

This leaves for consideration only the question of whether it is a violation of the law for a person to purchase not more than one gallon of whiskey from a liquor store in a county that has brought itself under the provisions of the Alcoholic Beverage Control Act and to transport the *347same, witb seals unbroken, into a county tbat bas not elected to come under tbe provisions of said Act.

G.S. 18-49 provides : “It shall not be unlawful for any person to transport a quantity of alcoholic beverages not in excess of one gallon from a county in North Carolina coming under the provisions of this article to or through another county in North Carolina not coming under the provisions of this article: Provided, said alcoholic beverages are not being transported for the purposes of sale, and provided further that the cap or seal on the container or containers of said alcoholic beverages has not been opened or broken.”

So then, if the defendant purchased eight pints or one gallon of intoxicating liquor at an ABC store in Newton and transported the same with seals unbroken to Boone, even though the town of Boone is located in a nonconforming county, he was within his rights under G.S. 18-49, unless the liquor was transported for the purpose of sale, and the last question is resolved in favor of the defendant by the action of the court in withholding the first count in the bill from the consideration of the jury. Therefore, it cannot be properly said that the defendant possessed and transported the liquor in violation of G.S. 18-49.

The defendant also appealed from the order of the court activating a prior suspended sentence upon the finding that the verdict and judgment in this case constituted a violation of the terms of the suspension. It appears that defendant’s point is well taken.

The propriety of executing a suspended sentence ordinarily is a matter addressed to the discretion of the presiding judge. However, there must be a finding that the defendant has violated one or more of the conditions upon which the sentence was suspended, and that finding must be based upon competent evidence. The State in this prosecution has failed to sustain its claim that the defendant has violated a provision of our prohibition laws. The presiding judge was, therefore, without authority to use the same evidence as the basis of a finding that the defendant had breached a condition of his suspended sentence. *S. v. Stallings,*234 N.C. 265, 66 S.E. 2d 822; *S. v. Robinson,*232 N.C. 418, 61 S.E. 2d 106.

It follows that the judgment and the order of the court below must be

Eeversed.