State v. Lee
237 S.E.2d 315
N.C. Ct. App.
1977
Check Treatment

Lead Opinion

PARKER, Judge.

Defendant challenges the sufficiency of the evidence to take the case to the jury. We find the evidence insufficient and hold that defendant’s motion for nonsuit should have been granted.

While it is the duty of the jury to determine the weight and credibility of the evidence, it is the court’s duty, in the first instance, to determine whether sufficient evidence has been presented to permit the jury to pass upon its weight and credibility. State v. Brackville, 106 N.C. 701, 11 S.E. 284 (1890). In this case the State relied upon circumstantial evidence, but the test of the sufficiency of the evidence is the same, whether the evidence is circumstantial, direct, or both. State v. McKnight, 279 N.C. 148, 181 S.E. 2d 415 (1971). “To withstand the motion for nonsuit, there must be substantial evidence of all material elements of the offense.” State v. Furr, 292 N.C. 711, 715, 235 S.E. 2d 193, 196 (1977). In determining whether there is substantial evidence, the court must consider all the evidence in the light most favorable to the State, and every reasonable inference arising from the evidence must be made in favor of the State. State v. Furr, supra.

Viewed in the light most favorable to the State, the evidence is sufficient to show that Brenda Jones died by virtue of a criminal act, but the evidence is insufficient to permit a jury to find that the criminal act was committed by the defendant. The evidence that defendant had beaten and threatened to kill the deceased provides strong evidence of motive, but evidence of motive, standing alone, is insufficient to support a conviction. State v. Furr, supra; State v. Jarrell, 233 N.C. 741, 65 S.E. 2d 304 (1951); State v. Hendrick, 232 N.C. 447, 61 S.E. 2d 349 (1950). A neighbor heard two shots near defendant’s trailer, but there was no evidence that either the defendant or the deceased was at the trailer at the time. In fact, there was no evidence to show where the deceased met her death, and the only evidence fixing the time of death was that death must have occurred sometime between Thursday morning, 26 August, when a neighbor saw Brenda Jones alive, and Saturday evening, 28 August, when the body was discovered. The State introduced in evidence a .25 caliber pistol, State’s Exhibit 1, but presented no direct evidence to connect this weapon with the defendant. Only by indulging in speculation and assuming facts not in evidence can the inference be drawn that State’s Exhibit 1 was ever at any time in defendant’s possession. Neither was there any evidence that State’s Exhibit 1 was used to kill the deceased. State’s Exhibit 7, the fired cartridge casing, could not be conclusively connected to State’s Exhibit 1, but *109even if the connection could have been made, there was no evidence as to where State’s Exhibit 7 had come from or what connection, if any, it may have had with the death of the decedent. Finally, the State introduced evidence that the defendant himself had been shot, but nothing in the record connects that incident to the shooting of Brenda Jones.

The evidence, viewed as a whole, raises a strong suspicion of guilt, but a suspicion or conjecture is insufficient to support a conviction. The evidence was not inconsistent with defendant’s innocence, and the motion for nonsuit should have been granted. State v. Furr, supra; State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967); State v. Jarrell, supra; State v. Brackville, supra.

Reversed.

Judge Arnold concurs.



Dissenting Opinion

Judge MARTIN

dissenting.

In my opinion, the evidence was sufficient to carry the case to the jury and to support its verdict of guilty of murder in the second degree.