STATE
v.
Alex TAYLOR.
No. 578.
Supreme Court of North Carolina.
May 20, 1959.*630 Atty. Gen. Malcolm B. Seawell and Asst. Atty. Gen. Harry W. McGalliard for the State.
E. L. Alston, Jr., Greensboro, for defendant, appellant.
BOBBITT, Justice.
Defendant's assignments of error, directed to the court's denial of his motion for judgment of nonsuit, are overruled. Indeed, on oral argument, defendant's *631 counsel frankly conceded that the evidence, considered in the light most favorable to the State, was sufficient to warrant submission to the jury and to support the verdict. Hence, there is no need to state evidential facts other than those necessary to understand the assignments of error stressed by defendant.
On cross-examination, defendant testified: "The man I think put the stuff there is Oliver Lucas who lives right behind me." Again: "He (Oliver Lucas) came up to the house about two or three days before that to speak to me about thisI guess it's this; I don't know. He wanted to use my garage to put white liquor in and I said `No.' And he said: `Well, in case you do see some around there, you won't say anything about it, will you? You won't see it?' or something like that, and as far as I know, I didn't answer him. * * * I told him he couldn't use the garage. As for telling him that he couldn't put it behind the garage, I don't believe I ever answered him." Defendant testified that if he had seen Lucas the day preceding the day of his arrest, that is, on August 26, 1958, "it was off at a distance," and that he was not "in Oliver Lucas' presence."
After defendant had so testified, the State offered an ABC enforcement officer who testified, over objections by defendant, that he had seen the defendant on August 26, 1958, between seven and eight A.M., in company with Oliver Lucas and one Woodrow Jordan, on Union Street in Greensboro; that defendant and Lucas left together in a 1946 Mercury four-door sedan; and that Jordan left in another car.
Defendant's contention that the court erred in admitting the officer's testimony is based upon the premise that it related to a collateral matter and therefore the State was bound by defendant's answer. Relevant to whether the subject of the contradictory testimony relates to a material or a collateral matter, defendant quotes Stansbury, North Carolina Evidence, § 48(3): "The proper test would seem to be whether the evidence offered in contradiction would be admissible if tendered for some purpose other than mere contradiction; or, in case of prior inconsistent statements, whether evidence of the facts stated would be so admissible." The "proper test," as so defined, is amply supported by cases cited by Professor Stansbury and by defendant. But when this test is applied, it appears that the officer's testimony was competent.
The State's evidence in chief contained no reference to Lucas. Lucas was introduced by defendant as a person who, two or three days before the whiskey was found, had approached defendant with reference to putting nontaxpaid whiskey on defendant's premises and to whom defendant had given no answer as to whether Lucas could put it behind defendant's garage. Indeed, defendant stated frankly that he believed Lucas had put it there. The fact that defendant was seen with Lucas, going off with him in a car, on the morning preceding the morning when the whiskey was found on defendant's premises, considered in connection with the testimony relating to defendant's prior conference with Lucas, was a relevant circumstance bearing upon whether the whiskey was on defendant's premises with his knowledge and consent. Thus, the evidence was properly admitted as material to the issue, not for the mere purpose of contradicting defendant in relation to a collateral matter.
Defendant assigns as error portions of the charge as given relating to constructive possession. Defendant concedes that possession may be either active or constructive. State v. Harrelson, 245 N. C. 604, 606, 96 S.E.2d 867, and cases cited. His contention is based largely on the asserted inadequacy of the court's instructions. "It is elemental that an exception to an excerpt from the charge ordinarily does not challenge the omission of the court to charge further on the same or another aspect of the case." Peek v. Wachovia *632 Bank & Trust Co., 242 N.C. 1, 16, 86 S.E.2d 745, 756, and cases cited; Rigsbee v. Perkins, 242 N.C. 502, 503, 87 S.E.2d 926. Even so, when the evidential facts are considered, the instructions given appear adequate.
Defendant asserts that the court erred in instructing the jury as follows: "* * * where liquor is on the premises of a person, or any other article of personal property for that matter, with his knowledge and consent, it is as a matter of law in his constructive possession." (Our italics.) In State v. Meyers, 190 N. C. 239, 129 S.E. 600, on which defendant relies, it was held that mere knowledge of the fact that the whiskey was on the defendant's premises was insufficient to establish as a matter of law that such whiskey was in the defendant's constructive possession. However, if nontaxpaid whiskey is on a person's premises, with his knowledge and consent, he has constructive possession thereof while it remains on premises under his exclusive control.
Assignments of error directed to the court's instructions as to aiding and abetting having been fully considered but do not merit particular discussion. Suffice to say, none discloses prejudicial error.
It is noted that the court explicitly instructed the jury that defendant would not be guilty on either count if another person "came and placed it there behind this garage without his knowledge or consent."
Defendant has failed to show prejudicial error in the conduct of the trial. The judgment, as to the first count, is affirmed. As to the second count, appeal having been taken to entry of judgment suspending the prison sentence, the judgment pronounced on the second count is stricken and the cause is remanded for proper judgment. See State v. Henderson, 245 N.C. 165, 95 S.E.2d 594, and State v. Moore, 245 N.C. 158, 95 S.E.2d 548, and cases cited therein.
As to first count: No errorJudgment affirmed.
As to second count: No error in trial Remanded for proper judgment.