STATE of North Carolina
v.
Delores HAMLET.
No. 725SC458.
Court of Appeals of North Carolina.
July 12, 1972.*812 Atty. Gen. Robert Morgan by Associate Atty. Gen. Henry E. Poole, for the State.
W. K. Rhodes, Jr., Wilmington, for defendant appellant.
PARKER, Judge.
The State's evidence was sufficient to warrant submission of the cases to the jury and defendant's motions for nonsuit were properly overruled.
"An accused's possession of narcotics may be actual or constructive. He has possession of the contraband material *813 within the meaning of the law when he has both the power and intent to control its disposition or use. Where such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession." State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714.
Evidence in the present case that the prohibited articles were found in a suitcase labeled with defendant's maiden name and that the suitcase was found beneath a bed in a bedroom recently occupied by her in a house which she leased as tenant, would support, but certainly not require, a jury finding that defendant had knowledge of the prohibited articles and that she had both the intent and capability to maintain dominion over them, thereby having them within her constructive possession in violation of the statutes under which she was charged. State v. Harvey, supra; State v. Allen, 279 N.C. 406, 183 S.E.2d 680.
For error in the charge, however, there must be a new trial. At one point in its charge, the trial court instructed the jury as follows:
"But, on the evidence that the defendant rented this house and the Heroin, if you should be satisfied beyond a reasonable doubt, from the evidence that she rented it, and that there was Heroin found in the house, then that would be enough evidence for you to find beyond a reasonable doubt that she possessed this Heroin."
A somewhat similar instruction was given in the case in which defendant was charged with unlawful possession of a hypodermic syringe and needle.
While the facts recited in the quoted portion of the charge, if found by the jury, may give rise to a permissible inference that the defendant had knowledge of the prohibited articles and had both the power and intent to control their disposition and use, State v. Harvey, supra; State v. Allen, supra, it was still necessary for the jury to draw that inference after consideration of all of the evidence, and the jury should have been clearly so instructed. In other portions of the charge the court correctly instructed the jury to the effect that an essential element of the crimes charged was that defendant "knowingly possessed" the prohibited articles, but it cannot be determined that the jury was not unduly influenced by the incorrect portion of the charge above quoted, and defendant is entitled to a new trial.
We do not discuss appellant's remaining assignments of error, some of which appear to have merit, since the questions presented may not recur upon a second trial.
New trial.
VAUGHN and GRAHAM, JJ., concur.