STATE
v.
HARRISON.
No. 73.
Supreme Court of North Carolina.
March 17, 1954.*483 Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.
Weeks & Muse, Tarboro, for defendant-appellant.
DENNY, Justice.
The only questions raised on this appeal, which in our opinion merit discussion, are these: (1) Was error committed in the court below in refusing to sustain the defendant's motion for judgment as of nonsuit? (2) Did the court err in admitting evidence with respect to the discovery and seizure of the gallon jug, containing nontax-paid whiskey, when the officers admitted they did not know who owned the premises where it was found? (3) Did the court commit error in overruling the defendant's motion to suppress all the evidence as to what was heard or seen after the officers reached the premises of the defendant, but before the search warrant was actually served? In our opinion each one of these questions must be answered in the negative.
The defendant contends that his motion for judgment as of nonsuit was erroneously overruled. We do not concur in this contention. The State's evidence established the undisputed fact that one quart of nontax-paid liquor was found in the home of the defendant. This evidence alone was sufficient to carry the case to the jury. G.S. § 18-48; State v. Avery, 236 N.C. 276, 72 S.E.2d 670.
It is true that Clyde Staton claimed the liquor found in the room occupied by him and Clifford Harrison. The evidence also reveals that Clifford Harrison likewise claimed the ownership of this particular liquor as well as that found near the defendant's barbecue pit. But they were witnesses for the defendant. Neither was any evidence offered on behalf of the State tending to show that Clyde Staton and Clifford Harrison occupied the room in the home of the defendant pursuant to a rental contract as was the case in State v. Hanford, 212 N.C. 746, 194 S.E. 481, upon which the defendant relies. Moreover, in the Hanford case, the search warrant only authorized the officer to search the premises of one Lacey Scott who occupied a rented room in the home of the defendant Hanford. His room was searched and fifteen gallons of liquor found. The State offered no evidence tending to show that the officers searched the premises of the defendant Hanford or that he was was authorized to do so. This Court held that the evidence tending to show the result of the search made was not incompetent but was insufficient to show that the whiskey found in the room which the defendant had rented to Lacey Scott was in the possession of the defendant Hanford and ordered a nonsuit as to him.
In the instant case, as pointed out in State v. Avery, supra, the evidence offered by the defendant, as a matter of defense, may not be considered on a motion for judgment as of nonsuit. The defendant's motion was properly overruled.
As to the second question posed, it is provided by statute that "no facts discovered or evidence obtained without a legal search warrant in the course of any search, made under conditions requiring the issuance of a search warrant, shall be competent as evidence in the trial of any action." G.S. § 15-27. In the instant case, the officers were armed with a search warrant issued pursuant to the provisions of G.S. § 18-13, *484 authorizing and commanding them to search the defendant's "dwelling, garage, filling station, barns, and outhouses, and premises, * * *. Seizing all intoxicating liquors, containers, and other articles used in carrying on the illegal handling of intoxicating liquors."
The defendant contends, however, that since the State failed to offer evidence tending to show that the gallon of nontaxpaid liquor was found on his premises, the facts relating to its discovery and seizure, as well as the container and its contents, should have been excluded upon his objection which was duly and timely made.
It seems to be generally held that the constitutional guaranties of freedom from unreasonable search and seizure, applicable to one's home, refer to his dwelling and other buildings within the curtilage but do not apply to open fields, orchards, or other lands not an immediate part of the dwelling site. Machen, The Law of Search and Seizure, page 95, citing Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898; Cornelius, Search and Seizure, Second Edition, page 49; 48 C.J.S., Intoxicating Liquors, § 394, page 630 et seq.; 30 Am.Jur., Intoxicating Liquors, section 528, page 529; Annotation 74 A.L.R. 1454, where numerous cases on this point are collected, among them being: Simmons v. Commonwealth, 210 Ky. 33, 275 S.W. 369; State v. Cobb, 309 Mo. 89, 273 S.W. 736; Penney v. State, 35 Okl.Crim. 151, 249 P. 167; Sheffield v. State, 118 Tex. Crim. 329, 37 S.W.2d 1038; Field v. State, 108 Tex. Crim. 112, 299 S.W. 258. So, if it be conceded that the gallon of nontax-paid liquor involved in the present case was found near the premises of the defendant but actually on the land of another and not within the curtilage of the dwelling of the owner thereof, a search warrant was not necessary for its seizure and the admissibility of evidence with respect thereto.
The facts and circumstances incident to the discovery and seizure of the gallon of nontax-paid liquor, together with the uncertainty as to whether it was actually found on the premises of the defendant, or within a few yards thereof, went to its weight and credibility but not to its admissibility.
The possession of nontax-paid liquor in any quantity, in this State, is unlawful. G.S. § 18-48; State v. Barnhardt, 230 N.C. 223, 52 S.E.2d 904. Therefore, if the State had offered evidence to the effect that the gallon of nontax-paid liquor had been found on the premises of the defendant, such evidence would have made out a prima facie case had no other nontax-paid liquor been found on the defendant's premises. State v. Camel, 230 N.C. 426, 53 S.E.2d 313; State v. Medlin, 230 N.C. 302, 52 S.E.2d 875; State v. Weston, 197 N.C. 25, 147 S.E. 618; State v. Meyers, 190 N.C. 239, 129 S.E. 600; State v. Crouse, 182 N.C. 835, 108 S.E. 911. But, the evidence of the State being uncertain in that respect, no prima facie case was made out by the evidence as to its discovery and seizure. Even so, a path led from the defendant's home to within 15 feet from where the gallon of nontax-paid liquor was found and there were no other paths intersecting or joining it. Consequently, under these circumstances we think the evidence was admissible on the question of possession. State v. Crouse, supra. Possession in such cases is not required to be actual, but may be constructive. State v. Parker, 234 N.C. 236, 66 S.E.2d 907; State v. Weston, supra; State v. Meyers, supra; State v. Ross, 168 N.C. 130, 83 S.E. 307; State v. Lee, 164 N.C. 533, 80 S.E. 405.
The charge is not included in the case on appeal. It is, therefore, presumed to be free from error and that the jury was properly instructed as to the law arising upon the evidence as required by statute. G.S. § 1-180; State v. Weston, supra.
The defendant excepts and assigns as error the failure of the court to suppress all the evidence as to what the officers saw and heard after they reached the defendant's premises but before the search warrant was served.
*485 While we do not approve of officers peeping through a window in a private dwelling in an effort to obtain additional evidence before serving a search warrant which had theretofore been issued for the express purpose of searching such premises, nevertheless, evidence as to what an officer, armed with a search warrant, saw or heard after entering upon such premises and before serving the warrant, if such evidence is otherwise admissible, may not be excluded merely because the officer obtained such information before serving the warrant. This assignment of error is without sufficient merit to justify a new trial.
We have carefully considered the remaining exceptions and in our opinion the verdict and judgment of the court below should be upheld.
No error.