This is a criminal action in which it was charged that defendant did "buy, possess, possess for the purpose of sale, retail and transport intoxicating liquors in violation of the Turlington Act." Upon a written and *Page 112 sworn affidavit of an officer, who stated therein that he acted upon "information," a warrant authorizing the search of defendant's premises for liquor was issued. Acting under the search warrant officers searched defendant's apartment, where he and friends were having a frog-leg supper. The officers found one gallon of tax-paid liquor. Drinking glasses were found in defendant's kitchen. On a roof, outside a window in a hallway leading to defendant's apartment, the officers found 102 empty bottles, most of them in a sack but from six to ten lying on the roof. Defendant's witnesses indicated that the bottles were on the roof when he moved to the apartment, but on cross-examination it appeared that the prior occupant left the apartment near the first of the year and that fifteen of the empty bottles taken from the roof bore dates ranging from February through April of that year. The State's evidence also indicated that one of the doors of defendant's apartment, as well as one of the bedroom walls, contained peep-holes covered on the inside with pieces of cardboard which could be moved back and forth, and that these peep-holes (and two others) were in the apartment during the tenancy of the prior occupant, who was convicted of selling liquor while there.
From a verdict of "guilty," and sentence pronounced thereupon, the defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The defendant, at the close of the State's evidence and at the conclusion of all the evidence, made motions in the court below for judgment of nonsuit. N.C. Code, 1935 (Michie), sec. 4643. The court below overruled these motions, and in this we can see no error.
Aside from the assignments of errors as to the refusal to grant the motions for judgment of nonsuit, the principal assignment of error deals with the admission of evidence procured under an allegedly invalid search warrant. Chapter 339, sec. 1 1/2, Public Laws of 1937, provides that no facts discovered by virtue of a search warrant issued "without first requiring the complainant or other person to sign an affidavit under oath and examining said person or complainant in regard thereto," shall be "competent as evidence in the trial of any action." The affidavit for the warrant of search and seizure, and the warrant itself, appear in the record. It is apparent that the affidavit was sworn to by a rural policeman of Mecklenburg County before a justice of the peace. To this extent the instant affidavit is in strict compliance with the requirement *Page 113 of the statute, However, the body of the affidavit reveals that the officer gave therein as the basis for his oath merely the one word, "information." It would seem that the defendant takes the position that the failure of the officer, in his affidavit, to give in detail the source and extent of the information upon which he seeks the warrant, is in itself sufficient to render incompetent evidence secured by virtue of the warrant issued upon such affidavit. We cannot so hold.
In so far as the record speaks, the complaining officer made the required affidavit under oath; nor does it negative the presumption that the officer was further examined thereto. S. v. Shermer,
Was this evidence, in quantum, sufficient to justify its submission to the jury? We think so. It revealed a defendant — a "big, strong and husky" man — whom two witnesses testified was never known to work. Occupying an upstairs apartment in the business section, easily accessible from the street. He went into the "lair" formerly occupied by a bootlegger who had been convicted of selling liquor in the place. The apartment was conveniently equipped with "peep-holes" to serve the purposes of illicit liquor trade. He went forth once or twice a week, over a period of months, to purchase a gallon of liquor from South Carolina liquor stores. When raided, he was found with the usual stock of liquor drinking glasses, so familiar to the bedroom-and-kitchen vendors of the prohibited fluid. With him also was a gallon of tax-paid liquor, four pints and two quarts, and conveniently near his abode, on a roof outside his hallway window, were a centurion's force of "dead soldiers" — 102 empty liquor bottles. Well aware, as we are, of the evasive character of a "scintilla of evidence," we think there was more *Page 114 than a scintilla of evidence here that defendant was engaged in activities prohibited by the law of this State. We think there was evidence from which the jury might find — as it did — that the comfortable lair so recently occupied by one "blind tiger" furnished an equally pleasant base for operations of another.
The other assignments of error need not be dealt with at length. Although the trial judge refused to permit an officer to be questioned as to his knowledge of the prior occupant of the apartment and his trade in liquor, defendant was not prejudiced thereby, since he was later permitted to elicit the same information from the prior occupant himself. Further, the record does not show the purpose for which this was offered nor what the witness' answer would have been. S. v. Leak,
The facts and circumstances of the instant case were sufficient to justify the inference by the jury that defendant had such liquor in his possession in violation of the Turlington Act. S. v. Langley,
The charge of the court below is not in the record and the presumption is that the court below charged the law applicable to the facts.
For the reasons given, in the judgment of the court below we find
No error.