52 S.E.2d 895 | N.C. | 1949
The defendant was tried upon an indictment, No. 3393, charging him with larceny and receiving. The jury returned a verdict of guilty as charged. Judgment was not pronounced, but the defendant was immediately put on trial upon an indictment, NO. 3459, charging him with highway robbery. The jury likewise returned a verdict of guilty as charged.
Thereupon the court ordered the two cases consolidated for the purpose of judgment, and pronounced judgment as follows: "That the defendant be confined in the State's prison for a term of not less than eight years nor more than ten years." *313
The defendant appeals, assigning error. In the respective trials upon the above indictments, the defendant moved for judgment as of nonsuit at the close of the State's evidence and renewed his motion at the close of all the evidence. The motions were denied and the defendant duly excepted in each case and assigns error based thereon.
It is well settled in this jurisdiction that in passing upon a motion for judgment as of nonsuit in criminal prosecutions, the evidence must be considered in the light most favorable to the State, and when so considered, on the record before us, we think the evidence is sufficient in each case to sustain the rulings of the court below. S. v. Gordon,
BILL OF INDICTMENT NO. 3393.
In this case the defendant excepts and assigns as error the following portion of his Honor's charge: "If the State in this case has satisfied you from the evidence beyond a reasonable doubt that the defendant Louis Braxton, on the 15th day of August, with the criminal purpose and intent at the time to deprive the prosecuting witness, Howard Hazleton, of his pocketbook and the contents thereof, having had no right to it at the time, and for the purpose of appropriating it to his own permanent use and enjoyment, took the said money of the said prosecuting witness, then you would return a verdict of guilty."
The defendant contends this instruction did not require the jury to find that the taking, if any, was with a felonious intent. We do not so construe it. But on the contrary, we think the instruction gave the essential elements of larceny which constitute a felonious intent. S. v. Massengill,
We have examined the remaining assignments of error relating to the trial of this case, and they are without merit.
BILL OF INDICTMENT NO. 3459.
The defendant excepts and assigns as error the following excerpt from his Honor's charge: "And if the State has satisfied you from the evidence and beyond a reasonable doubt — and a reasonable doubt, gentlemen, is a doubt based upon reason and common sense and growing out of the evidence in the case — then you will return a verdict of guilt in this case."
The vice complained of here is the instruction that a reasonable doubt "is a doubt based upon reason and common sense and growing out of the evidence in the case." As said in S. v. Tyndall, ante, 174, a reasonable doubt "may arise from lack of evidence or from its deficiency. In a criminal prosecution the burden is on the State to establish the guilt of the accused beyond a reasonable doubt, and not on the defendant to raise a doubt as to his guilt. S. v. Steele,
While some authorities hold that a reasonable doubt sufficient to justify the acquittal of a defendant must arise from the evidence and that an instruction to that effect includes want of evidence, 23 C.J.S., Criminal Law, Section 910, at p. 164, we think such instruction is too limited and tends to prejudice the rights of the defendant.
A defendant is entitled to an acquittal if there is a reasonable doubt in the minds of the jurors as to his guilt, and it makes no difference whether that doubt arises out of the evidence in the case or from the lack of evidence of sufficient probative value to satisfy the jury beyond a reasonable doubt of his guilt.
Nor can the defect in the instruction given in the trial below be regarded as inconsequential or harmless. It involves the intensity of proof as well as the burden. Substantially similar instructions have been *315
considered by other courts and held for error. S. v. Brackett,
The necessity for a new trial upon indictment No. 3459 requires a consideration of the action of the court in consolidating these cases for trial for the purpose of judgment.
Ordinarily where separate bills of indictment are returned and the bills are consolidated for trial, as authorized by G.S.
In No. 3393 — Error and remanded.
In No. 3459 — New trial. *316