#### STATE v. CHARLEY FOSTER.

(Filed 2 January, 1929.)

Intoxicating Liquor — Possession — Constructive Possession — Presumptions.

The mere fact that a pint of intoxicating liquor was found in a basement of a building leased by the defendant, with evidence that the basement was not actually or constructively in the possession of the defendant, is not alone sufficient to raise the presumption of the unlawful possession by the defendant of such liquor, and an instruction to that effect is reversible error to the defendant’s prejudice.

CbimiNal action, before *Moore, J.,*at July Term, 1928, of Haywood.

The defendant was indicted for violation of the prohibition law. At the close of the evidence the solicitor announced that he would ask for a conviction on only two counts in the bill, to wit, sale and possession of intoxicating liquors. The jury returned a verdict of not guilty as to selling whiskey but guilty under the count charging possession. Thereupon the defendant was sentenced to serve a term of six months on the roads.

The witness for the State, who made the search, testified as follows: “I found a pint of whiskey in the basement under his store, and it was buried in the dirt. ... I found a number of empty bottles and a number of places where they had been scratched out that day. . . . I didn’t find any whiskey in his house. I found this in the basement. I don’t know who the building belongs to and I don’t know if he is in possession of the basement. You enter this basement from the outside and not from the store. You enter it from the side of the building, and there is a trail from the front door to the basement door around the side of the building. From the room where he conducts his business you can’t get into the basement. ... As well as I remember there is an old cook stove in that basement, but I didn’t see any other rubbish and stuff in there. I don’t know if Charley Foster has any goods or merchandise that he sells down there, it had been used a pretty good deal that day after the rain. The door was locked and I don’t know who had been in there. ... I pulled the lock off, just took it •and jerked it two or three times and it came unlocked.”

From the judgment pronounced the defendant appealed.

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

*Morgan & Ward for defendant.*

*432BbogdeN, J.

Tbe following instruction was given tbe jury: “Tbe court instructs you tbat tbe defendant being there in possession of tbat bouse is a presumption tbat be was in possession of tbe whole building. Until tbat presumption is rebutted or removed tbat presumption is against him. The State having satisfied you beyond a reasonable doubt tbat be was in possession of tbat store room, then tbe presumption is tbat be was in possession of tbe whole building. Tbe State does not have to prove negative testimony, does not have to prove tbat somebody else owns the basement or has charge of it, but tbe law presumes tbat be, being in possession of tbe store would be in possession of tbe entire building.”

Tbe question of law presented by tbe foregoing instruction is this: “Does the law presume tbat tbe lease of a store room necessarily includes tbe basement and other portions of tbe building?”

It is not necessary in order to decide this case to ramble in tbe legal field of presumptions. There is in tbe North Carolina Law Review of June, 1927, an interesting and instructive article on this subject. Dean McCormick, of tbe University Law School, tbe author, declares: “One ventures tbe assertion tbat ‘presumption’ is tbe slipperiest member of tbe family of legal terms, except its first cousin, ‘burden of proof.’ A Missouri lawyer said tbat presumptions were ‘bats of tbe law flitting in tbe twilight, but disappearing in tbe sunshine of actual facts.’ ”

Tbe law does not presume tbe terms of a lease, unless, of course, tbe lease is made under statutory authority and purports to comply therewith. Tbe general principle established by tbe decisions of tbe courts is to tbe effect tbat a lease covers tbe property actually described therein, together with such other property as may be necessary for tbe beneficial use and enjoyment of tbe property leased. 36 C. J., 29. *Florgus Realty Corporation v. Reynolds,*187 N. Y. S., 188; *Goldsmith v. Traveler Shoe Co.,*109 N. E., 394.

Tbe evidence does not disclose tbat the defendant was in either actual or constructive possession of tbe basement of said store, nor does it’ appear what tbe terms of tbe lease were. Neither does it appear that the use of tbe basement was reasonably necessary for tbe beneficial enjoyment of tbe store.

Under these circumstances tbe charge of tbe trial court was too broad, and tbe exception of tbe defendant thereto is sustained.

New trial.