39 N.C. App. 233 | N.C. Ct. App. | 1978
Defendant assigns as error the trial court’s failure to enter judgment of nonsuit. It is well settled that upon motion for non-suit evidence, whether direct or circumstantial, presented by the State and evidence presented by the defendant which may tend to strengthen the State’s case is to be considered in the light most favorable to the State while giving the State every reasonable inference to be drawn therefrom. State v. Braxton, 294 N.C. 446, 242 S.E. 2d 769 (1978); State v. Shaw, 293 N.C. 616, 239 S.E. 2d 439 (1977). The evidence taken in the light most favorable to the State is summarized below.
The prosecuting witness, William Edward Gardner, a man suffering from coronary disease, drove to an Avery County establishment known as Times Square at about 1:15 a.m. on 13 December 1977, to pick up his wife. Shortly after he arrived there, defendant and another individual drove their cars into the same parking lot in which Gardner’s car was parked, and stopped 20 or 30 feet away. Mr. Gardner testified that he overheard defendant say to his companion, “We’ll pin him in.” Defendant and his companion left the parking lot. When Mrs. Gardner came to the car her husband told her about the statement he overheard. Mr. Gardner was “nervous and upset.”
Mr. Gardner left Times Square and proceeded along Curtis Creek Road in Avery County to return home. The road was very icy. Before reaching his home he had to stop for the defendant’s companion’s car which became stuck when it was unable to negotiate the slippery, narrow gravel road. Defendant’s own car was parked, across the road in such a manner that Gardner could
Trooper Joe Shook investigated the collision incident and issued defendant a parking citation. Afterwards, at about 3:00 a.m. while Trooper Shook was standing in the living room of Mr. Gardner’s home, a bullet was fired through the kitchen door and struck the chimney in the living room. No one was seen outside the house when the shot was fired. A metal fragment which Mr. Gardner asserted was the bullet fired by defendant was found sometime later in the Gardner’s vacuum cleaner. Its caliber was not identified. No spent cartridge casings were found. Trooper Shook testified that the gunshot sounded like it was fired from a .22 caliber rifle.
After the shooting Trooper Shook and Deputy Sheriff Barlowe returned to the defendant’s home. Defendant was found in bed wearing his shirt, pants, and socks. Defendant had injured his right hand and blood was found on his clothing. The officers followed a trail of blood from defendant’s front porch back in the direction of defendant’s car and Gardner’s home. The spots of blood began about 100 feet from where defendant’s car was left after the collision. Defendant told the officers that he had walked back to his car to lock it and had injured his hand when he fell on the icy road. Curtis Creek Road and those roads branching from it are so situated that one walking from defendant’s house to his car would be taking the same route as would be followed if one were walking to the Gardner house although both houses are not on the same road.
The officers searched a barn about 100 yards from defendant’s house and found a box of untarnished .22 caliber bullets lying on the floor. No weapon was found. Deputy Barlowe testified that defendant’s mother said, when they arrived at the house, that “he was in the bed but he was strange, that he had lost his mind or something.”
This evidence is insufficient to withstand defendant’s motion for judgment of nonsuit. The State’s evidence is entirely circumstantial. The State’s evidence must establish that (1) a crime has been committed and (2) that it was committed by the person charged. State v. Chapman, 293 N.C. 585, 238 S.E. 2d 784 (1977);
One can do no more than speculate that defendant fired the gunshot and that he injured himself fleeing the scene of the crime. The trial court erred in failing to allow defendant’s motion for nonsuit.
Because we hold that defendant was entitled to judgment of nonsuit, we need not consider errors in the charge to the jury.
Reversed.