The assignments of error, based upon exceptions to denial of motions of defendants for judgment as of nonsuit, appear to be well taken. The evidence offered upon the trial in Superior Court is insufficient to support a verdict of guilty as to either defendant on either count. S. v. Webb, 233 N.C. 382, 64 S.E. 2d 268; S. v. McLamb, 236 N.C. 287, 72 S.E. 2d 656.
In this State it is unlawful for any person to possess any intoxicating liquor for the purpose of sale. G.S. 18-2. Defendants are charged with violation of this statute. Their pleas of not guilty put in issue every element of the offense charged. S. v. Webb, supra, and cases cited. See also S. v. McLamb, supra.
(The Attorney-General calls attention to the fact that the contents of the containers is described in evidence merely as “white liquor”). See S. v. Tillery, 243 N.C. 706, 92 S.E. 2d 64; S. v. Wolf, 230 N.C. 267, 52 S.E. 2d 920.
Possession, within the meaning of the above statute, may be either actual or constructive. S. v. Lee, 164 N.C. 533, 80 S.E. 405; S. v. Meyers, 190 N.C. 239, 129 S.E. 600; S. v. Harvey, 228 N.C. 62, 44 S.E. 2d 472; S. v. Hendrick, 232 N.C. 447, 61 S.E. 2d 349; S. v. Webb, supra; S. v. McLamb, supra.
In the Meyers case, supra, it is stated “If the liquor was within the power of the defendant in such a sense that he could and did command its use, the possession was as complete within the meaning of the statute as if possession had been actual.”
*607In the light of these principles, applied to the evidence in hand, whether liquor found in the trap at the trash pile belonged to either defendant, or was in his or her possession, is purely speculative, and, hence, insufficient to support a verdict of guilty of possession of intoxicating liquor.
Moreover, the possession of a quantity of gin less than one gallon in the home of defendants raises no presumption that it is possessed for the purpose of sale. Hence the possession of the designated quantity of beer and of the gin is not a circumstance sufficient to be considered by the jury in connection with the charge of illegal possession of beer and gin.
G.S. 18-32 (4) makes the possession of more than five gallons of malt liquors at any one time prima facie evidence that the possession is for the purpose of sale. But the evidence in the instant case is that the quantity of beer found in the refrigerator in the house is less than five gallons. So, no presumption arises thereupon against defendants. And the evidence is too uncertain and speculative to make out a case of possession for the purpose of sale.
Hence this Court holds that the motions for judgment as of nonsuit should have been allowed.
Also the ruling of the court putting into effect the suspended sentence as to defendant Jones, being predicated upon finding that the verdict of guilty in instant case is violative of conditions, is in error. Hence defendant is entitled to have the judgment by which suspended sentence was put into effect reversed and stricken from the record.
In accordance therewith the judgments from which appeal is taken are