State v. . RoseState v. . Rose
- Reporters:
- , ,
- Before:
- CoNnor
Tbe assignments of error on this appeal are basеd on defendant’s exception to tbe refusal of tbе court to instruct tbe jury that defendant was presumed to bе innocent of tbe crime with which be is charged in tbe warrant, and to state to tbe jury tbe contentions of tbe defеndant, as requested by bis counsel at tbe conclusion of tbe charge to tbe jury. This is tbe only exception appearing in tbe record, except tbe formal exception to tbe refusal of tbe court to set аside tbe verdict and grant a new trial.
Tbe evidence offered by tbe State, if believed by tbe jury, was of sufficient prоbative value to establish tbe truth of tbe State’s contеntion that at tbe time and place stated in tbe warrаnt tbe defendant bad intoxicating liquor in bis possession for tbе purpose of sale. S. v. Myers, 190 N. C., 239, 139 S. E., 600; S. v. Ross, 168 N. C., 130, 83 S. E., 307; S. v. Lee, 164 N. C., 533, 80 S. E., 405. There was no evidencе tending to contradict tbe evidence for tbe State, or to impeach tbe witness for tbe State. There wаs evidence tending to show that tbe whiskey found by tbe officеrs in defendant’s store was at least in bis constructive pоssession. This was sufficient, for as was said in S. v. Myers; supra, “If tbe liquor was in tbe power of defendant, in such a sense that be could and did command its use, tbe possession was as completе within tbe meaning of tbe statute as if bis possession bad been actual.” If tbe jury believed tbe evidence, and found bеyond a reasonable doubt that tbe whiskey was in tbe pоssession of tbe defendant, then there was ample еvidence that defendant bad tbe whiskey in bis possession for tbe purpose of sale.
In its charge tbe court bаd instructed tbe jury that if they found tbe facts to be as tbe evidеnce tended to show, beyond a reasonable dоubt, they should return a verdict of guilty. Having correctly imposеd upon tbe State tbe burden of proof beyond a reasonable doubt, tbe court declined to instruct the jury thаt defendant was presumed to be innocent. While tbe court might have well complied with tbe request of defendant’s counsel, under tbe authority of S. v. Boswell, 194 N. C., 260, 139 S. E., 374, we cannot bold that tbе refusal to give tbe instruction as *345 requested was error for which the defendant is entitled to a new trial, as a matter of law. The request for the instruction was not in writing, and was first madе after the court had concluded its charge to the jury. C. S., 565, and C. S., 566.
Nor was it error in the instant case for the court to refuse to state the contentions of the defendant after it had concluded its charge to the jury. The evidence consisted of the testimony of only one witness, whose testimony -was not impeached on his cross-exаmination or otherwise. The law applicable to the facts shown by all the evidence is simple and plаin. The charge was in substantial compliance with 0. S., 564. We find no error for which defendant is entitled to a new trial. The judgment is affirmed.
No error.