State v. Costner.

| N.C. | Dec 4, 1900

FAIRCLOTH, C. J., dissents. The defendant, whose character was said to be good, by his employer on the trial, was convicted of burglary in the second degree at the August Term, 1900, of CATAWBA. The case, as we read it from the evidence, presents some peculiar phases. It appears from the evidence that the defendant was found lying or crouching on the floor, near the side of the bed 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, was little more than shadowy. The two witnesses for the State who were occupants of the room did not claim to know the face of the defendant, and one of them did not know that the intruder was white or black, and both witnesses closed the testimony by saying, one, "I never claimed that I could swear that (572) 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 defendant'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 have no concern.

The first exception of the defendant was to the receiving 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 statute, without coat or hat, and that she knew defendant's figure, but not his face. She was asked by the Solicitor, "What is your opinion, from what you saw of the man that night, as to who it was?" She answered, "The figure in the room that night compared more favorably with Wade Costner than anyone else I could think of in that community." That evidence was weaker than that which was allowed in S. v. Lyttle, 117 N.C. 799" court="N.C." date_filed="1895-09-05" href="https://app.midpage.ai/document/state-v--lytle-3661891?utm_source=webapp" opinion_id="3661891">117 N.C. 799, to prove the identity of Lyttle. There the witnesses 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; that 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 that reason it has to be received.

The exception made by defendant's counsel to the refusal of his Honor to instruct the jury that, upon all the evidence, they 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.

The defendant had subpoenaed, as a witness for (573) 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 refused to interfere, and the defendant excepted. The exception is without merit. The point is settled in S. v. Jones, 77 N.C. 520" court="N.C." date_filed="1877-06-05" href="https://app.midpage.ai/document/state-v--jones-3650539?utm_source=webapp" opinion_id="3650539">77 N.C. 520, andS. v. Kiger, 115 N.C. 746" court="N.C." date_filed="1894-09-05" href="https://app.midpage.ai/document/state-v--kiger-3650210?utm_source=webapp" opinion_id="3650210">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 spent 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 place; for evidence had been introduced for the State tending to show that about the hour of the occurrence, or a little later, the defendant went 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 (Uncle 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. S. v. Johnson, 88 N.C. 623" court="N.C." date_filed="1883-02-05" href="https://app.midpage.ai/document/state-v--johnston-3672162?utm_source=webapp" opinion_id="3672162">88 N.C. 623, is, in principle, in point on this exception.

No error.

Cited: S. v. Carmon, 145 N.C. 486; S. v. Walker, 149 N.C. 531.

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