34 N.C. App. 109 | N.C. Ct. App. | 1977
Dissenting Opinion
dissenting.
The evidence and reasonable inferences therefrom, considered in the light most favorable to the State, tend to show:
Eight to ten shots were fired at the trailer home from a motor vehicle on the road where the eight or nine .22 caliber shell cas*112 ings were found, and at least two bullets struck and were imbedded in the home. Two hours after the shooting the .22 caliber weapon which fired these shots was found in defendant’s home behind the sofa where defendant was sitting. The weapon was fully loaded with .22 caliber cartridges, and some .22 caliber cartridges were found in defendant’s pocket.
It is my opinion that from the totality of circumstances it may reasonably be inferred that defendant committed the charged crime, and the trial court did not err in denying the motion for judgment as of nonsuit.
Lead Opinion
As his sole assignment of error, defendant contends that the court erred in its denial of defendant’s motion for judgment as of nonsuit.
In determining the sufficiency of the evidence to withstand a motion for judgment as of nonsuit, the evidence must be considered in the light most favorable to the State, including all reasonable inferences which could be drawn therefrom. State v. Bruton, 264 N.C. 488, 142 S.E. 2d 169 (1965). In the presént case the evidence is largely uncontroverted. The question then is whether on the basis of this evidence a jury could reasonably infer that an offense has been committed, and that the defendant committed it. State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967).
While we think it may be reasonably inferred from the evidence that the offense charged in the bill of indictment was committed, we think the evidence is insufficient to raise more than a suspicion that the defendant committed the crime. State v. Cutler, supra; State v. Brackville, 106 N.C. 701, 11 S.E. 284 (1890). The only evidence connecting defendant with the offense charged is that a spent .22 caliber casing found on the paved road near the Rowell home was, in the opinion of the ballistics expert, fired from the gun found in the defendant’s house. We can only speculate that the holes observed in the Rowell home were actually made by a bullet from the spent .22 caliber casing fired from defendant’s gun. State v. Cutler, supra. Furthermore, since there is no evidence that defendant had an opportunity or motive to commit the crime, we can do no more than speculate that defendant actually fired the gun which left the casing on the side of the road. Thus, we hold that the court erred in denying defendant’s motion for judgment as of nonsuit.
Reversed.
