152 S.E. 895 | N.C. | 1930
Lead Opinion
after stating the case: The only question presented is the sufficiency of the evidence to warrant the verdict. It is stronger on the present record than it was on the first appeal, 196 N. C., 542. And it would seem that the evidence in the instant case is fully as strong as that which was submitted to the jury in the following cases: S. v. Allen, 197 N. C., 684; S. v. McKinnon, 197 N. C., 576; S. v. Lawrence, 196 N. C., 562, 146 S. E., 395; S. v. Melton, 187 N. C., 481, 122 S. E., 17;
True, tbe evidence is circumstantial, but circumstantial evidence is, not only a recognized and accepted instrumentality in tbe ascertainment of truth, but in many cases quite essential to its establishment. S. v. Plyler, 153 N. C., 630, 69 S. E., 269.
Tbe evidence as to tbe identity of tbe tracks was competent. S. v. Lowry, 170 N. C., 730, 87 S. E., 62. Indeed, it may be stated as a general rule that tbe correspondence of tracks, footprints, or ground marks, found in connection with a crime, with tbe track, footprint, or shoe mark of one accused of tbe crime, or with tbe track, footprint, or shoe mark of bis horse, or with tbe track, tread, or wheel mark of bis wagon, buggy, or automobile, is admissible in evidence as tending to identify tbe accused as tbe perpetrator of tbe crime, tbe probative value of such evidence, of course, depending upon tbe attendant circumstances. S. v. Young, supra; S. v. Griffith, supra; S. v. Taylor, supra; S. v. Fain, 177 N. C., 120, 97 S. E., 716; S. v. Martin, 173 N. C., 808, 92 S. E., 597; S. v. Freeman, 146 N. C., 615, 60 S. E., 986; S. v. Hunter, 143 N. C., 607, 56 S. E., 547; S. v. Adams, 138 N. C., 688, 50 S. E., 765; S. v. Daniels, 134 N. C., 641, 46 S. E., 743; S. v. Morris, 84 N. C., 756; S. v. Reitz, 83 N. C., 634; S. v. Graham, 74 N. C., 646; Annotation: 31 A. L. R., 204.
Speaking to tbe subject in S. v. Spencer, 176 N. C., 709, 97 S. E., 155, Walker, J., delivering tbe opinion of tbe Court, said: “The testimony as to tbe fitting of tbe shoe to tracks found where tbe prisoner bad been seen was admissible, as it was a circumstance tending to show identity. . . . This is ‘real’ evidence, as called by tbe civilians, and its value as proof is greater or less, according to tbe circumstances. . . . It is some evidence tending to identify tbe prisoner as tbe perpetrator of tbe crime.”
It is sometimes difficult to distinguish between evidence sufficient to carry a case to tbe jury, and a mere scintilla, which only raises a suspicion or possibility of tbe fact in issue. S. v. Bridgers, 172 N. C., 879, 89 S. E., 804; S. v. White, 89 N. C., 462. And it may be readily conceded that this is one of tbe border-line cases. But viewing tbe evidence in its most favorable light for tbe State, tbe accepted position on a demurrer or motion to nonsuit, we are of opinion that it is of sufficient probative value to warrant its submission to tbe jury. S. v. Vaughn, 129 N. C., 502, 39 S. E., 629.
Tbe general rule is, that, if there be any evidence tending to prove tbe fact in issue, or which reasonably conduces to its conclusion as a
The function of the court when considering a motion to nonsuit, is, not to pass upon the-weight of the evidence, but to determine its sufficiency to support the verdict. S. v. King, 196 N. C., 50, 144 S. E., 518. Or as said in S. v. Carlson, 171 N. C., 818, 89 S. E., 30; “The motion to nonsuit requires that we should ascertain merely whether there is any evidence to sustain the allegations of the indictment. The same rule applies as in civil cases, and the evidence must receive the m’ost favorable construction in favor of the State for the purpose of determining its legal sufficiency to convict, leaving its weight to be passed upon by the jury. S. v. Carmon, 145 N. C., 481; S. v. Walker, 149 N. C., 527; S. v. Costner, 127 N. C., 566. The effect of Laws 1913, ch. 73, allowing a motion for nonsuit in a criminal ease, was considered in S. v. Moore, 166 N. C., 371, S. v. Gibson, 169 N. C., 318. Where the question is whether there is evidence sufficient to warrant a verdict, this Court considers only the testimony favorable to the State, if there is any, discarding that of the prisoner. S. v. Hart, 116 N. C., 976. The weight of the evidence and the credibility of the witnesses are matters for the jury to pass upon. S. v. Utley, 126 N. C., 997.”
The accepted rule, it is true, is that, in cases where the State relies upon circumstantial evidence for a conviction, the circumstances and evidence must be such as to produce in the minds of the jurors a moral certainty of the defendant’s guilt and to exclude any other reasonable hypothesis. S. v. Matthews, 66 N. C., 106; S. v. Melton, supra. Here, the incriminating evidence, taken in its entirety, if accepted and believed by the jury, would seem to be sufficient to warrant the verdict. S. v. McLeod, supra. This is as far as we are permitted to go in considering the defendant’s demurrer to the evidence or motion for judgment as in case of nonsuit under C. S., 4643.
The fact that the defendant offered no evidence, but relied upon the legal presumption of innocence and the weakness of the State’s case, is not to be taken against him. C. S., 1799. The presumption of innocence which surrounds a defendant on his plea of “not guilty,” goes with him throughout the trial and is not overcome by his failure to testify in his own behalf. He is not required to show his innocence. The burden is on the State to prove his guilt beyond a reasonable doubt.
The rulings in S. v. Montague, 195 N. C., 20, 141 S. E., 285, S. v. Rhodes, 111 N. C., 647, 15 S. E., 1038, S. v. Goodson, 107 N. C., 798, 12 S. E., 329, S. v. Brackville, 106 N. C., 701, 11 S. E., 284, and S. v. Massey, 86 N. C., 660, are distinguishable, as they were based upon facts essentially different from those appearing on the present record.
A searching scrutiny of the record leaves us with the impression that the case was properly submitted to the jury.
No error.
Dissenting Opinion
dissenting: I dissented in the former appeal reported in 196 N. C., 542, for the reason that the evidence “was vague, uncertain and inconclusive-as to the vital fact of guilt.”
The evidence in the present case is no stronger than that produced at the former hearing.
The only evidence of identity having any probative value at all, is certain tracks found at a distance of 110 or 150 yards from the body. None were found nearer than that.
The defendant lived within a mile or a mile and a quarter of the deceased and had lived there all his life. The purported tracks were traced four or five miles beyond the defendant’s house and then doubled back, making in the aggregate a distance of eight or nine miles. The murder was committed about 11:00 or 11:30 at night, and the officers arrived at the home of the defendant about 4:00 in the morning, and he was in bed. At the former hearing, bloodhounds had followed these tracks over the long and circuitous route testified to. When the hounds arrived at the home of the defendant they stopped within thirty feet of the house, and when the defendant was brought out the dogs “did not bay or indicate him in any way.” The Court held that the dog evidence was incompetent and a new trial was awarded. In this appeal the witnesses followed the same route the dogs followed in the former appeal. Hence the same evidence is still here, with the dogs left out. The practical result is that the defendant is perhaps convicted upon evidence that the Court has already held to be incompetent and inadmissible.
Moreover, the tracks found in the potato-patch about 150 yards from the body were ordinary tracks made by a broad-toed number 8 shoe. Some of the witnesses at the trial were wearing broad-toed number 8 shoes,
The defendant sat up with a sick baby of the witness Campbell on Tuesday night preceding the murder on the following Monday. Campbell’s house is near the potato-patch referred to, where the tracks were found. There is no evidence that the tracks were fresh or that they were not there before the murder was committed.
Reviewing the entire record, I am of the opinion that the evidence is too thin and too scant to justify the taking of life.
Lead Opinion
BROGDEN, J., dissenting. Criminal prosecution tried upon an indictment charging the prisoner with the murder of one Rebecca Matthews.
The evidence on behalf of the State tends to show that on the night of 27 March, 1928, about 11 p.m., Mrs. Rebecca Matthews, a woman 77 or 78 years of age, was dragged from her home a distance of thirty yards to the edge of a field where she was found dead soon after midnight, having been brutally assaulted, choked, manhandled, bruised and ravished by some one with gonorrhea, such as the prisoner had. She died from the assault, shock and choking.
The first witnesses who came to the aid of the 80-year-old husband, himself quite feeble and senile, in searching for his missing wife, heard some one run away from the direction of where the body was found. Toe prints were discovered at the feet of the deceased, apparently made by No. 8 square-toed shoes, such as the defendant wore. Signs of tracks could be seen, but not identified because of the character of the ground, going from the body to a potato patch, a distance of approximately 75 or 100 yards, but here the ground was soft and the tracks became quite distinct and clear. Similar tracks were identified at a number of places along a torturous course, apparently taken by the murderer, which led to the home of William McLeod, father of the defendant, where the prisoner also lived and was found in bed about 3 or 4 o'clock in the early morning of 28 March, 1928. The shoes which Wilbur McLeod had at that time were freshly polished and corresponded in every particular with the identification made by the measurements and by placing the shoes in a number of the tracks. The prisoner's shoes measured 11 1/2 inches in length. The sole on the right shoe was 6 inches long, while that on the left measured 6 1/4 inches. They were both 4 1/4 inches in width. The distance from heel to sole on the left shoe was 2 inches, and the distance from heel to sole on the right shoe was 2 1/4 inches. The *651 tracks on the ground showed these identical measurements. They also showed the imprint of rubber heels with peculiar marks, similar to those on the prisoner's shoes. The identification of the tracks as having been made by the defendant's shoes was quite complete.
When arrested, the defendant first told the officers that he had been over to see his aunt that night and had returned about 12 o'clock. Later he said he was in by 11 o'clock; that he slept with his father and that his father was in bed when he came in. The prisoner was then asked where he was from 9 o'clock until he got home. His reply was: "I might have been in earlier than that." The defendant's father, on being asked what time his son came in that night, said: "I went to bed at 9 o'clock and he was in bed then." The defendant started to say something, but the officer told him to "keep quiet." He was nervous and tears came in his eyes.
The prisoner was the only person in William McLeod's house whose shoes could have made the tracks in question. It was also found that he alone of the three negro men in said house who were arrested and examined, was suffering from the particular venereal disease, evidence of which was left on the body of the deceased by the person who raped her.
It was further in evidence that the defendant was familiar with the premises and knew the deceased and her husband. He claimed not to have been in that neighborhood for two weeks prior to the killing, but the State's evidence showed that he was in the immediate vicinity on Thursday preceding the homicide on Tuesday.
The defendant offered no evidence, but lodged a motion at the close of the State's case for judgment as of nonsuit under C. S., 4643. Overruled and exception.
Verdict: Guilty of murder in the first degree.
Judgment: Death by electrocution.
The prisoner appeals, assigning errors.
after stating the case: The only question presented is the sufficiency of the evidence to warrant the verdict. It is stronger on the present record than it was on the first appeal,
True, the evidence is circumstantial, but circumstantial evidence is, not only a recognized and accepted instrumentality in the ascertainment of truth, but in many cases quite essential to its establishment. S. v.Plyler,
The evidence as to the identity of the tracks was competent. S. v.Lowry,
Speaking to the subject in S. v. Spencer,
It is sometimes difficult to distinguish between evidence sufficient to carry a case to the jury, and a mere scintilla, which only raises a suspicion or possibility of the fact in issue. S. v. Bridgers,
The general rule is, that, if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a *653
fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury; otherwise not, for short of this, the judge should direct a nonsuit or an acquittal in a criminal prosecution. S. v. Vinson,
The function of the court when considering a motion to nonsuit, is, not to pass upon the weight of the evidence, but to determine its sufficiency to support the verdict. S. v. King,
The accepted rule, it is true, is that, in cases where the State relies upon circumstantial evidence for a conviction, the circumstances and evidence must be such as to produce in the minds of the jurors a moral certainty of the defendant's guilt and to exclude any other reasonable hypothesis. S. v. Matthews,
The fact that the defendant offered no evidence, but relied upon the legal presumption of innocence and the weakness of the State's case, is not to be taken against him. C. S., 1799. The presumption of innocence which surrounds a defendant on his plea of "not guilty," goes with him throughout the trial and is not overcome by his failure to testify in his own behalf. He is not required to show his innocence. The burden is on the State to prove his guilt beyond a reasonable doubt. *654 S. v. Singleton,
The rulings in S. v. Montague,
A searching scrutiny of the record leaves us with the impression that the case was properly submitted to the jury.
No error.