State v. Costner.
37 S.E. 326
N.C.
1900
Check Treatment
MONTGOMERY, J.

The defendant, whose character was said to be good, by his employer on thе trial, was convicted of burglary in the second degree at the August Term, 1900, of the Superior Oourt of Catawba County. The case, as we read it from the evidence, presents some peculiar phases. It appears from the evidencе that the defendant was found lying or crouching on the floor, near the side of the bеd in which one of the witnesses was sleeping, between 12 and 1 o’clock at night. There were three grown persons ‍​‌​​‌‌​​​​‌‌‌‌​​‌​‌‌​‌‌‌‌‌‌​‌​‌‌‌​​​​‌​​‌​‌​‌​​​‍sleeping in the same room at the time. The windows were up. It is difficult to believe that the purpose of the defendant was to do any harm to the occupants of the room, and, from the evidence, nothing was disturbed. The evidence as to the identity of the defendant, while more than a scintilla, wаs little more than shadowy. The two witnesses for the State who ■were occupаnts of the room did not claim to know the face of the defendant, and one оf them did not know that the in- *572 trader was white or black, and both witnesses closed the testimоny by saying, one, “I never claimed that I could swear that the defendant is the person who entered the house;” and the other, “I do not claim to have identified the man who was in the ‍​‌​​‌‌​​​​‌‌‌‌​​‌​‌‌​‌‌‌‌‌‌​‌​‌‌‌​​​​‌​​‌​‌​‌​​​‍room.” There was evidence, however, concerning the defеndant’s whereabouts on the night of the occurrence, which to some extent compromised the defendant, and which probably had undue weight with the jury; but with that we can hаve no concern.

The first exception of the defendant was to the reсeiving by his Honor of certain evidence testified to by one of the occupants of the room. She had said that the man who entered the room was small of stаture, without coat or hat, and that she knew defendant’s figure, but not his face. She was аsked by the Solicitor, ‍​‌​​‌‌​​​​‌‌‌‌​​‌​‌‌​‌‌‌‌‌‌​‌​‌‌‌​​​​‌​​‌​‌​‌​​​‍“What is your opinion, from what you saw of the man that night, as to -who it wаs ?” She answered, “The figure in the room that night compared more favorably with Wadе Costner than anyone else I could think of in that community.” That evidence was weаker than that which was allowed in the case of State v. Lyttle, 117 N. C., 799, to prove the identity of Lyttle. Thеre the witness said, in substance, that it was so dark he could not tell whether the man whom he saw in the road was white or black; that he' had his back to him; that he had known him ‍​‌​​‌‌​​​​‌‌‌‌​​‌​‌‌​‌‌‌‌‌‌​‌​‌‌‌​​​​‌​​‌​‌​‌​​​‍10 years; thаt he was a low, chunky man; and that, if he had spoken to him, he would have called him Lyttle. But the evidence in the present case was more than a scintilla, and for thаt reason it has to be received.

The exception made by defendant’s сounsel to the refusal of his Honor to instruct the jury that, upon all the evidence, thеy should return a verdict of not guilty, ‍​‌​​‌‌​​​​‌‌‌‌​​‌​‌‌​‌‌‌‌‌‌​‌​‌‌‌​​​​‌​​‌​‌​‌​​​‍can not be sustained. The evidence was not strong against the defendant, but there was evidence against him, and it was for the jury to pass upon its weight.

*573 The defendant had subpoenaed, as a witness for himself, Brad Edwards, who was present at the trial. One of the attorneys who was assisting the Solicitor commented before the jury on the,failure of the defendant to examine this witness. His Honor refusеd to interfere, and the defendant excepted. The exception is without merit. The point is settled in State v. Jones, 77 N. C., 520, and. State v. Kiger, 115 N. C., 746. The Solicitor commented upon the fact that defendant had able counsel, and had not brought a witness to show or explain where he sрent that night, and the defendant’s counsel asked his Honor to stop the Solicitor in his remarks, which request was refused. ' The comments of the Solicitor were not out of рlace; for evidence had been introduced for the State tending to show that about the hour of the occurrence, or a little later, the defendant wеnt to the house of one of the State’s witnesses, and there spent the balance of the night — a thing which was most unusual with him — and that he was not at his own house that night. It is further testified to by one of the State’s witnesses that on the next morning the defendant was asked by his employer where he had spent the night, and the defendant said, “At Uncle Eat’s.” The fact was, if Eaton Lawrence’s (Huele Eat’s) testimony was true, the defendant spent only an hour or an hour and a half at 'his house, and that the defendant seemed tired and worried. State v. Johnson, 88 N. C., 623, is, in principle, in point on this exception.

No error.

Eaiecloth, C. J., dissents.