State v. Cutler
156 S.E.2d 679
N.C.
1967
Check Treatment
LAKE, J.

Upon a motion for judgment as of nonsuit in a criminal action, the evidence must be considered by the court in the light most favorable to the State, all contradictions and discrepancies therein must be resolved in its favor and it must be given the benefit of every reasonable inference to be drawn from the evidence. State v. Bruton, 264 N.C. 488, 142 S.E. 2d 169; State v. Thompson, 256 N.C. 593, 124 S.E. 2d 728; State v. Bass, 255 N.C. 42, 120 S.E. 2d 580. All of the evidence actually admitted, whether competent or incompetent, including that offered by the defendant, if any, which is favorable to the State, must be taken into account and so considered by the court in ruling upon the motion. State *383 v. Walker, 266 N.C. 269, 145 S.E. 2d 833; State v. Virgil, 263 N.C. 73, 138 S.E. 2d 777.

The question for the Court is whether, when all of the evidence is so considered, there is substantial evidence to support a finding both that an offense charged in the bill of indictment, or warrant if it be a case tried upon a warrant, has been committed and that the defendant committed it. State v. Bass, 253 N.C. 318, 116 S.E. 2d 772. If, when the evidence is so considered, it is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion for nonsuit should be allowed. State v. Guffey, 252 N.C. 60, 112 S.E. 2. 734. This is true even though the suspicion so aroused by the evidence is strong. State v. Chavis, 270 N.C. 306, 154 S.E. 2d 340.

The test of the sufficiency of the evidence to withstand such a motion is the same whether the evidence is circumstantial, direct, or both. State v. Stephens, 244 N.C. 380, 93 S.E. 2d 431. “When the motion for nonsuit calls into question the sufficiency of circumstantial evidence, the question for the court is whether a reasonable inference of defendant’s guilt may be drawn from the circumstances. If so, it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty.” State v. Rowland, 263 N.C. 353, 139 S.E. 2d 661. “If the motion is overruled, it becomes the court’s duty to charge the jury that in making up its verdict it must return a verdict of not guilty unless the evidence points unerringly to the defendant’s guilt and excludes every other reasonable hypothesis.” State v. Stephens, supra. This, however, is not the test to. be applied by the Court in determining whether the evidence is sufficient to warrant the submission of the case to the jury.

These controlling principles of law are more easily stated than applied to the evidence in a particular case. Of necessity, the application must be made to the evidence introduced in each case, as a whole, and adjudications in prior cases are rarely controlling as the evidence differs from case to case.

Applying these governing principles to the evidence introduced in the present case, we reach the conclusion that it is sufficient to raise a strong suspicion of the defendant’s guilt but not sufficient to remove that issue from the realm of suspicion, and conjecture. It may reasonably be inferred that the defendant was at the home of the deceased when the deceased came to his death, or shortly thereafter. However, it is not enough to defeat the motion for nonsuit that the evidence establishes that the defendant had an opportunity to commit the crime charged. State v. Holland, 234 N.C. 354, 67 S.E. 2d 272.

*384 The evidence of the State is not sufficient to show any blood from the body of the deceased upon the person, clothing, knife or vehicle of the defendant. The hair found upon the bloody knife blade was, in the opinion of the expert offered by the State, similar to hair taken from the chest of the deceased, but the expert was not able to state that in his opinion it came from the body of the deceased. There is no evidence as to whether this hair was similar to the defendant’s own hair. The State’s evidence does not disclose that any blood found upon any object in the residence of the deceased came from the defendant. There is no evidence to show ill will between the deceased and the defendant or any other motive for the defendant to assault or kill the deceased. Neither the court nor the jury may draw any inference from the election by the defendant not to offer evidence in his own behalf.

The motion for judgment as of nonsuit should have been allowed. This being true, it is unnecessary to consider the assignments of error relating to the admission of evidence offered by the State.

Reversed.