State v. . Harvey
44 S.E.2d 472
N.C.
1947
Check Treatment
Stacy, C. J.

The question for decision is whether the evidence suffices to overcome the demurrer and to carry the case to the jury. The trial court answered in the affirmative. We are inclined to a different view.

True it is, the evidence seems to point an accusing finger at the defendant as the perpetrator of the crime, and to excite suspicion, somewhat strongly perhaps, of his guilt, but it apparently leaves too much to surmise or assumption to support a conviction. S. v. Warren, ante, 22; S. v. Oxendine, 223 N. C., 659, 27 S. E. (2d), 814, and cases cited.

The defendant entered upon the trial with the common-law presumption of innocence in his favor and with the burden on the State to establish his guilt beyond a reasonable doubt. S. v. Singleton, 183 N. C., 738, 110 S. E., 846. In other words, the jury was required to be “fully satisfied,” “entirely convinced,” or “satisfied to a moral certainty,” of the defendant’s guilt before a verdict could be rendered against him. S. v. Harris, 223 N. C., 697, 28 S. E. (2d), 232. The defendant’s plea of traverse put in issue the question of his guilt.

The State relies upon circumstantial evidence, which is a recognized and accepted instrumentality in the ascertainment of truth; and, in many instances, quite essential to its establishment. S. v. Coffey, 210 N. C., 561, 187 S. E., 754. In such case, however, the defendant being charged with a felony, the rule is, that the facts established or adduced on the hearing must be of such a nature and so connected or related as to point unerringly to the defendant’s guilt and exclude any other reasonable *65 hypothesis. S. v. Stiwinter, 211 N. C., 278, 189 S. E., 868; S. v. Matthews, 66 N. C., 106.

The record discloses a capital crime of murder, certainly one in the second degree. Yet the jury returned a verdict of manslaughter. Conceding the power of the jury to pardon of the graver offense and to convict of a lesser one, even in the absence of evidence to support the milder verdict, which affords the defendant no cause for complaint as it is favorable to him, S. v. Bentley, 223 N. C., 563, 27 S. E. (2d), 738, nevertheless, the mildness of the verdict, in the light of the record, would seem to indicate some hesitancy on the part of the jury to assess the defendant with the homicide. S. v. Sisk, 185 N. C., 696, 116 S. E., 721.

The only witness who saw the perpetrator of the crime, and that in the dark and at some distance away, was not familiar with his carriage or manner of walk, and declined to identify the defendant as the man he saw. All he would say was that he “looked to be about the same size and height.” S. v. Thorp, 72 N. C., 186. The guilt of an accused is not to be inferred merely from facts consistent with his guilt, but they must be inconsistent with his innocence. S. v. Massey, 86 N. C., 658. “Evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient foundation for a verdict and should not be left to the jury.” S. v. Vinson, 63 N. C., 335. See, also, S. v. Battle, 198 N. C., 379, 151 S. E., 927; S. v. Swinson, 196 N. C., 100, 144 S. E., 555; S. v. Montague, 195 N. C., 20, 141 S. E., 285; S. v. Prince, 182 N. C., 788, 108 S. E., 330; S. v. Gragg, 122 N. C., 1082, 30 S. E., 306; S. v. Rhodes, 111 N. C., 647, 15 S. E., 1038; S. v. Goodson, 107 N. C., 798, 12 S. E., 329; S. v. Brackville, 106 N. C., 701, 11 S. E., 284; S. v. Powell, 94 N. C., 965; and Witthowsky v. Wasson, 71 N. C., 451.

The theory of the State is, that the defendant left the home of the deceased in the afternoon of the day in question, went to his brother’s house in Jones County and secured a .22 riñe, as he threatened to do, returned to New Bern about sundown and shortly thereafter committed the homicide. The defect in this theory is, that the witness Hill who drove the defendant into Jones County, says he did not bring a rifle back • with him. Then, too, the record is silent as to the size of the death bullet, although the bullet itself was in evidence.

It all comes to this: The evidence for the prosecution is inconclusive. It is not compelling. Taking it to be true, and entirely so, it still leaves the identity of the accused as the perpetrator of the crime in doubt, and fails to exclude his innocence as a reasonable assumption. S. v. Miller, 220 N. C., 660, 18 S. E. (2d), 145; S. v. Matthews, supra. It would require a repudiation of Hill’s testimony and a guess to bridge the hiatus in the State’s case. S. v. Johnson, 199 N. C., 429, 154 S. E., 750.

*66 The defendant’s demurrer to the evidence will be sustained here. G. S., .15-173.

Reversed.