STATE
v.
Albert CHAVIS.
No. 676.
Supreme Court of North Carolina.
May 10, 1967.*343 Atty. Gen. T. W. Bruton and Staff Attorney Ralph White, Jr., Raleigh, for the State.
James R. Nance, Jr., Fayetteville, for defendant appellant.
BOBBITT, Justice.
G.S. § 90-88 provides: "It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this article." (Our italics.) Marijuana (marihuana) is a narcotic drug and so defined in G.S. § 90-87(1) and (9). Defendant is charged with the unlawful possession thereof.
The State contends envelopes containing marijuana found in an upturned hat in a grassy area between the cinder block dwelling and Bragg Boulevard had been in the possession of defendant. Obviously, defendant did not have possession of the hat or envelopes or marijuana at the time of his arrest on Saturday, April 30, 1966.
The State's case rests primarily upon evidence tending to show that the hat in and on which the envelopes containing marijuana were found was the identical hat defendant was wearing when he, walking along the sidewalk, passed in front of Officers Boone and Truitt. Obviously, proof of this evidential fact beyond a reasonable doubt was a prerequisite to the establishment of defendant's guilt.
If the circumstantial evidence in its entirety were deemed sufficient to withstand defendant's motion for judgment as in case of nonsuit, an application of the law to the facts arising on the evidence as provided in G.S. § 1-180 would require that the presiding judge instruct the jury that proof of such fact beyond a reasonable doubt was a prerequisite to a verdict of guilty. However, proof of such evidential fact would not, standing alone, warrant a verdict of guilty. To establish defendant was guilty *344 as charged, it was incumbent upon the State to satisfy the jury from the evidence beyond a reasonable doubt that the marijuana in the envelopes found by Officer Boone was in defendant's possession either in the hat he was wearing or elsewhere about his person. With reference to nonsuit, the critical inquiry is whether marijuana found by Officer Boone was in the possession of defendant when he was first observed and followed by the officers.
There is no evidence that either officer observed defendant make any disposition of the hat he had been wearing or of any article or articles he may have had in his possession. Officer Truitt testified: "I did not see the defendant place his hat in any particular place. I just saw him minus his hat."
The identity of the person who had possession of the marijuana prior to the discovery thereof by Officer Boone is not disclosed. Did defendant put the marijuana in the hat found by the officers? Was it put there by defendant's unidentified companion? Was it put there before or after defendant and his companion left the area where the hat was found, walked back towards Hillsboro Street and were accosted by the officers? There was no evidence the marijuana was in a hat while defendant was wearing it. Nor was there evidence the marijuana was put in the hat found by the officers at defendant's direction.
The rule for determining the sufficiency of circumstantial evidence to withstand a motion for judgment as in case of nonsuit as set forth in State v. Stephens, 244 N.C. 380, 93 S.E.2d 431, and approved in many subsequent decisions, is established law in this jurisdiction. Frequently, the application of the rule presents difficulty. Here, the evidence, in our opinion, falls short of being sufficient to support a finding that the marijuana found by the officers in and on a hat in the high grass was in the possession of defendant when he was first observed and followed by the officers. Although the evidence raises a strong suspicion as to defendant's guilt, we are constrained to hold the motion for judgment as in case of nonsuit should have been allowed. Accordingly, the judgment of the court below is reversed.
The foregoing disposition renders unnecessary discussion of assignments of error relating to (1) the competency of the testimony as to statements made by defendant when arrested, searched and interrogated, and (2) the sufficiency of the court's instructions with reference to the application of the law to the facts arising on the evidence.
Reversed.