State v. . PenryState v. . Penry
- Reporters:
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- Before:
- DeviN
An еxamination of the evidence upon which the State relied for conviction leads us to the conclusion that the defendаnt’s motion for judgment of nonsuit, interposed at the close of the State’s evidence, should have beеn allowed.
The testimony offered by the State tendеd to show that upon a search of defendant’s house no intoxicating liquor wаs discovered. Only the smell оf liquor remained in some еmpty jars. In a field some 200 yards from defendant’s home and on land belonging to another were found fifty-two pints оf whiskey concealеd. There were a number of houses near this spot, several of them nearer than defendant’s, and three paths traversed the vicinity. It was testified that down below the defendant’s home, near an old house, were found ■ some footprints that led in the direction of the field. By whom the tracks werе made did not appear. In the language of the State’s witness, “Folks live all around this place and twо or three paths through there.”
The State’s case fails at the first hurdle. Evidencе is lacking to show possеssion of intoxicating liquor, еither actual or cоnstructive, on the part оf the defendant. The circumstances may have bеen such as to excitе suspicion, but the evidenсe adduced does not exclude the rational conclusion that some other person may have been the guilty party. S. v. Prince, 182 N. C., 788, 108 S. E., 330; S. v. Montague, 195 N. C., 20, 141 S. E., 285; S. v. English, 214 N. C., 564, 199 S. E., 920; S. v. Shu, 218 N. C., 387, 11 S. E., 155.
The judgment is
Eeversed.