108 S.E. 330 | N.C. | 1921
Defendant was convicted of manufacturing spirituous liquor, and, being sentenced to eighteen months on the roads, he appealed.
The only question is whether there was any evidence of his guilt, and this was raised by his motion to nonsuit the State.
The evidence substantially was that three officers had searched near defendant's premises on 10 May, 1921, and about one-half or three-quarters of a mile from his house they found a distillery that was being operated, and the materials were there for making whiskey. There was a path leading from the distillery up a hill about 150 yards to a road, which was intersected by the railroad, and led to the defendant's house, but the road passed his house and extended to the neighborhood beyond, and in the direction of Raleigh. There was a path from the house of the defendant to a spring about 200 yards away, and a path led from the spring to an old place where a distillery furnace had once been "which showed no signs of recent use." A pile of sawdust was found some distance beyond this spring, and beyond this sawdust there was evidence of a distillery furnace having been operated some time in the past, but which had not been recently used. They found an old still-worm in the edge of the woods and back of defendant's garden, but there was nothing to indicate any recent use of it, and it apparently had been lying there, exposed to the weather for quite a while. Not far from this old and unused distillery-worm, a jug of something, having the (789) appearance of tomato beer, was found. It resembled something found at the distillery, three-quarters of a mile away, which they took to be tomato beer.
The defendant was not at home, and they did not see him on this raid or search; his premises and house were searched without objection by his wife, who assured them before they went in that they would find nothing, and they found nothing there, as she had stated. In the barn or granery of the defendant there was found a barrel containing a few gallons of molasses, estimated to be not over five *844 gallons. Following the road past the defendant's house from the direction of the distillery going directly west into the woods, something like 300 yards from the defendant's home and about 35 or 40 yards from the road, two five-gallon jugs were found sitting behind a log and were in guano sacks; but were unstopped, one of them was empty and the other one contained about a cupful of something that had the odor of whiskey.
All the witnesses admitted that nothing was found in the home of the defendant to arouse the least suspicion that whiskey was being stored or kept there. Each witness stated he knew not whether the land belonged to the defendant where the still sites were found, and none of these witnesses knew whether the still-worm, or jug of tomato beer, or any jugs, were on the premises of defendant; that the defendant was not seen in connection with either the distillery, the empty jugs, or the still-worm, and was not at home on this occasion.
The witness Ferguson, who lived in Prince's neighborhood, testified that the path leading from the distillery in the direction of the defendant's home had been used as a school path for a number of years.
Motion to nonsuit, submitted at the close of all the evidence, which is above set forth, was overruled. Defendant excepted, and appealed.
We have examined the evidence with close scrutiny, and can find none upon which a verdict of guilty can reasonably be based, if there is any, upon which to raise even a well founded suspicion. All of the circumstances upon which the State solely relies may exist, and yet the defendant be innocent. Either singly or in combination they produce no assurance of guilt, but, as most, only a mere conjecture or surmise of it, which is certainly not sufficient as evidence. Byrd v. Express Co.,
We may say generally that evidence should raise more than a mere conjecture as to the existence of the fact to be proved. The legal sufficiency of proof and the moral weight of legally sufficient proof are very distinct in the conception of the law. The first lies within the province of the court, the last within that of the jury. Applying the maxim, de minimis non curat lex, when we say that there is no evidence to go to the jury, we do not mean that there is literally and absolutely none, for as to this there could be no room for any controversy, but there is none which ought reasonably to satisfy the jury that the fact sought to be proved is established, though there is no practical or logical difference between no evidence and evidence without legal weight or probative force. The sufficiency of evidence in law to go to the jury does not depend upon the doctrine of chances. However confidently one, in his own affairs, may base his judgment on mere probability as to a past event, when he assumes the burden of establishing such event as a proposition of fact and as a basis for the judgment of a court, he must adduce evidence other than a majority of chances that the fact to be proved does exist. It must be more than sufficient for a mere guess, and must be such as tends to actual proof. But the province of the jury should not be invaded in any case, and when reasonable minds, acting within the limitations prescribed by the rules of law, might reach different conclusions, the evidence must be submitted to the jury. Campbell v. Everhart,
The principle is well stated in Spruill v. Ins. Co., 120 N.C. at p. 147, that where the action of the judge in directing a verdict or granting a nonsuit or dismissal of the action can be sustained only under the doctrine, firmly established in this State, that where there is no evidence, or a mere scintilla of evidence, or the evidence is not sufficient, in a just and reasonable view of it, to warrant an inference of any fact in issue, the court should not leave the issue to be passed upon by the jury, but should direct a verdict against the party upon whom the burden of proof rests. And Gaston, J., thus stated the rule in Cobb v.Fogalman,
The testimony in s. v. Brackville,
The case of S. v. Turner,
The isolated facts as to the finding of the still and still-worm and jug with the cupful of liquor in it, and the tomato beer, all off the defendant's premises, were really collateral to the issue, being distinct and independent offenses, not connected with the principal charge (even if there was any evidence that defendant was responsible for the articles being where they were), and are not regarded by the law as evidence of defendant's guilt. S. v. Jeffries,
The result is that the learned judge who presided at the trial should have granted the motion to nonsuit under the statute, and there was error in refusing to do so.
Reversed.
Cited: S. v. Clark,
(793)
