*1 THE COURT IN SUPREME 108 y. Poole
State (1973), Waddell, 431, 194 2d 19 282 In State v. N.C. S.E. penalty and ex- death is the sole declared that this Court degree punishment in the first committed clusive for murder January The murder 1973. 14-17. after 18 G.S. in North Carolina convicted was committed defendant has been for which this only proper therefore, July sentence, was not 1 1973. The death impose. court could one that the trial but was that defend- entire record discloses An examination of the judg- prejudicial error. The trial free from ant had a fair has upheld. imposed must therefore be ment No error. Higgins Sharp and Justice Justice Justice Chief Bobbitt, imposition remand for and vote to as to death sentence
dissent of dissenting imprisonment for the reasons stated in sentence of life Jarrette, in v. opinion of Justice Bobbitt Chief 721, (1974). 625, 666, 2d 747 202 284 N.C. S.E. A. POOLE OF CAROLINA v. SAMUEL
STATE NORTH No. 18 (Filed April 1974) — burglary Breakings degree sufficiency Burglary 5—first § and Unlawful of circumstantial evidence degree burglary denying case erred de- Trial court in first in nonsuit where evidence tended show that fendant’s motion for the was identify intruder, did not defendant as defendant homeowner possession panel late of a red truck and a sawed off rifle as crime, commission of the there was no evidence as seven hours before during immediately prior as to where the truck was the seven hours police officer found it within minutes of the crime to the crime but in the vicinity the crime scene where defendant said he had left it gas, when it ran out of a button which was found at crime scene during on a shirt found a second search of defendant’s matched those house, house or track relating fingerprints and there was no inside the prints the house. outside dissenting. Lake Jusice Higgins dissenting join opinion.
Justices and Huskins Appeal August J., Braswell, Superior Session of Moore Court. TERM 1974 SPRING *2 charged that, on an indictment which was tried Defendant “unlawfully wilfully felo- May 1973, and did
on 19. niously burglariously enter, the hours break and between and night day, the p.m. in the of the same p.m. and 9:30 of 9:00 dwelling Maness, 1, Robbins, Tennie Rt. North house of A. actually occupied situate, Carolina, and then and there there he, the Maness, with felonious intent Tennie the said A. violently Poole, forcibly and ravish and A. said Samuel sleep- Maness, occupying carnally a female know Tennie A. against dwelling her house, ing without her consent and in said will.” evidence was offered State. Sum- The quoted, except of each of
marized, when narrated below. witnesses State’s
Miss Tennie Maness living May 1973, in her “four-room alone she On County. 1, Robbins, About 9:00 on Route in Moore house” brick getting dark,” “just returned to her home p.m., it was she as brother, Maness, her who lived about with Wilmer after a visit quarter mile from her. of a a alone, p.m.,” home, or 9:30 she her “about 9:15
Inside reading, her door. bed, heard a noise at she was in front windows, doors, side, closed front and and all been two Her burning only light was in dark It was then and locked. her him to come to and asked She called her bedroom. Wilmer front someone was at the door.” “because house cutting later,” “a like she heard noise ten minutes “Five or glass” “turned the back the side door. then or at She on metal light on,” frighten thinking them.” “didn’t hear “it would She going in,” Thinking “they to break she were them in.” come get try she “to out.” opened door to When the bedroom standing door, man and tall” opened she saw “a colored door.” “approximately 10 feet from bedroom hall [her] standing lighted man was “was hall where this The area gun.” light.” man had “a short-barreled bedroom [her] standing gun.” “just He was “the didn’t see stock She caught glimpse” of say anything.” “just She still” and “didn’t he had “whether didn’t know didn’t see his clothes and him. She quickly as she could door as on a hat.” slammed the She up beside her bedroom climbed chair it. then locked She IN THE COURT SUPREME
State v. Poole opened screen, out window, window, and climbed raised the “probably “through section of the window.” It was the bottom ground.” esti- the window to the 12 feet from the bottom of She required “probably two minutes’ time.” mated going through window,” she ran to the side “After road, “just quick the house and turned toward the as [she] say, away,” feet heard a man could.” she “was 75 she When got gun.” stopped minute,” “Stop, then saw I’ve She “for one screaming running yard toward in her and “started Wilmer brother.” [her] left, person her whether
She did not know when the behind running “a has he was when he left or where went. She *3 slight hearing loss.” only probably ten from the She estimated it “was minutes got go
time he there.” did not broke in till brother She [her] morning. then found that back to her house until the next She the lock on door was did not hear her bedroom broken. “[She] being anything The which caused to think was broken. [her] 4 or bedroom door a new door and had been on there was years. good left 5 It was in condition before bed- [she] [her] white, probably cotton on the window are room.” “The curtains or a mixture of cotton and a synthetic fabric.” person (s) The “had never seen defendant before.” She testimony did to in her did not touch her. She referred know how got the man in the hall out of house. she saw Deputy Dalton Cheek Sheriff approxi- at the residence of Miss Maness at He arrived mately p.m. There he saw and talked with 9:33 on 19th. following until the He did not see Miss Maness Maness. Wilmer day. glass Upon premises of the he found the his examination glass “immediately in- was There was
in the door broken. side had busted off.” The door.” The “bedroom lock been side the side window to the bedroom was still raised. Half of the curtain was ground approximately 2 “on the or half was intact. feet from the house mately other immediately approxi- the window.” At below May 20th, dark brown on he first saw a 3:30 a.m. lay- 9) of the that was (Exhibit “in the fold curtain No. button open ing ground directly window on the beneath envelope. placed an Maness residence.” He button Tennie TERM SPRING v. Poole day next her if it He showed it to Miss Maness the and “asked garments.” objec- any testified, of her without came [He any of tion, that Maness told him “it did not come from Miss clothing.”] her Sunday, May 20th, approximately defendant at
On saw approxi- at the Police Defendant “is 9:30 a.m. Robbins Station. mately 6 feet inches.” He told defendant “there been night lady’s into the before” and he “needed to house went Thereupon, about it.” he advised defend- reading talk with [defendant] rights” paper, and, ant of “constitutional after his signed rights. a waiver approximately (Cheek) if At 9:45 a.m. he asked defendant they they premises, “would he minded if went to his be incriminating part.” looking anything that for would be his no on direct examination of a visit [There during morning May premises 20th.] (Exhibit jail up p.m. a statement At 5:45 at the he wrote gave signed 7), by defendant, in which defendant County De- Deputies his “full consent to of the Moore Sheriff’s incriminating any partment inspect premises for evi- [his] breaking entering case.” dence in the Tennie A. Maness Accompanied residence, defendant, he went to defendant’s 8) (Exhibit from which one it and removed a shirt searched missing. button, bottom, from the the second *4 morning May he 20th, defendant told him that On the gas driving paved panel on ran red truck a rural out of when (Cheek) had seen road near the residence of Miss Maness. He May p.m. vicinity approximately on at 9:33 the truck in that approximately of a mile south of 19th. It was located 2/10 There was “no residence close to the residence of Miss Maness. ignition panel There “no truck and the Maness residence.” key in the truck.” ignition key following day noon obtained an at he “just any He started
started the vehicle without trouble. Defendant and shut it off.” up let it run for a while truck it; (Cheek) found he he had left the truck where stated that, paved truck, he south on the rural he left the traveled when boys him to his picked up who carried two resi- road picked he was made no as to when Defendant statement dence. up picked him give any persons he said name of the and did not up. THE IN SUPREME COURT any any weapon on asked “whether he kind
When owned evening,” weapon in defendant stated “he had not had a years.” several cross-examination,
On Cheek testified as follows: approxi- he first searched defendant’s residence at When mately May 9:45 a.m. on 20th he “looked in all of the rooms.” Department At that time Officer of the Robbins Police Cockman gave per- p.m., with when defendant him was mission to search looking him. About 5:45 again, he told defendant that he “would be garment type for a of some to match the button [he] Deputy had found.” was with him on the sec- Sheriff Whitaker (Exhibit 8) ond On the search. second search found the shirt May in the front bedroom next to the bed. From 9:30 a.m. on 20th, defendant, when he first defendant was either in his saw (Cheek’s) custody custody of the Moore or in the someone in County Department. Sheriff’s get any fingerprints
He did not at the Maness residence. telephone approximately He talked to on the Miss Maness at May p.m. approximately 3:30 on 20th. He first saw truck at p.m. May on 19th en route to the residence of Miss 9:33 Maness. He checked the time, operate at that but did not
vehicle night May it on the 19th. He had the vehicle “towed in Garage Garage stored at in in Yow’s Yow’s Robbins.” It “was the vehicle.” Someone else towed the vehicle started [he] Garage. to Yow’s testified on examination as follows: Cheek redirect garage there no The vehicle was towed to the because brought ignition Bradley key ignition key. down Mr. day. next (Cheek) shirt to Mr. Pearce at He delivered button and Raleigh Laboratory May on 23rd. The button was SBI in when he first obtained it from
the same condition was through 20th. There were threads folds curtain in the same condition it holes in the button. The shirt was it from defendant’s residence. was in when he first obtained E. Pearce William *5 Laboratory employee of the State As an in the Chemical analysis Investigation vari- his included Bureau of duties investigations. criminal of evidence in connection with ous items TERM 1974 SPRING y. May compari- 25th, 24th On made he examinations and (Exhibit 9) (Exhibit 8) sons button and the shirt May Cheek submitted him on 23rd. There were black cotton There were in Exhibit 9 and in on threads Exhibit buttons 8. strands on side and on
six one seven strands back, “the other. On the strands were knotted.” These buttons by put were on a machine. Exhibit 9 was “the same in all re- spects, measurements, diameter, color, number of holes and depressions” as the on buttons Exhibit 8. comparison, To make the he used a button which he removed pocket from the of the shirt. He “did not the buttons in remove they might shirt, the line of the for fear be related for further compared “cursorily taking evidence.”He them without them off compared
the shirt.” He the knot on the buttons used him comparison remaining for buttons on the with that “tied on the back of the appeared” they shirt,” and “it in were “tied same manner.” by stating He concluded on his examination direct opinion his “Exhibit 9 could have been torn from the
shirt, 8.” Exhibt cross-examination, On he testified that on label “Washington permanent press read, shirt Cee, shirt”; Dee and appeared everyday common, that the shirt to be “a workshirt, gray cotton”; that “that button could have come from a shirt of type particular that he wouldn’t made the same manufacturer” but opinion want base his whether shirt was “certainly manufacturer; made came from shirt the same and that the button which had other on it buttons which were identical to it.” Boyce Dowd testified that he sold defendant “a sawed- May paid
off 1973; .22 rifle” on or about and that defendant him for and left “with the rifle.” $20.00 Moseley testified that sawhe defendant on Robert 19th afternoon”; “about 1:00 or 2:00 in the that traveling panel truck; in a red he and defendant went liquor Carthage got 2:00”; that, store in “about go home, 2:30,” out to “about he saw “a .22 automatic with rifle
the barrel truck “where sawed off about inches” the front of the you change gears”; that, when asked got rifle, where he defendant said “it wasn’t his.” On cross- *6 IN THE SUPREME COURT
examination, defendant “had not been he testified that he and get gone Carthage drinking day”; they to to that had that shooting something drink; he been of to and that had convicted years probation then on three and was defendant about back for it. Ralph possession that testified he Bruce William hands”; pick up panel “to work of a red truck which he used morning” Friday to drive
that “on truck; he allowed defendant Sunday morn- that he the truck was on the next time saw ing 1:00”; then “close to the North that the truck was “about gasoline School”; he did not know how much Moore and that let have was in the he it. truck when Bradley “self-employed haul- testified that he was Lester Bruce, ing poultry”; May 19th, permitted he that, on or about (Bradley’s) panel employee, possession his red his truck, to have of up help “pick and to area which Bruce used again bring City”; that he saw the truck them to Siler Garage; for Sunday that the foreman of the crew in the Yow “gasoline gauge away; drove it which Bruce works gallons up broken”; fill “after that it took 13.7 and [was] pick up the hands and come back its route to it had made City, a distance 38 miles.” Siler Harry years and he was 15 old testified that Person May 19th, “in the Robbins; defendant on that he saw lived in that, really was”; what time it evening,” know but “[didn’t] questions”; “asked store,” “at Officer June Cockman [him]
that, Davis, cousin, he left store accompanied James his go home”; defendant “in saw later “about minutes road”; leading path path starts out to the main “[t]he alone; goes store”; that defendant was out to the the road and at and coming coming . . toward . was that defendant “was [him] the road to store.” towards recalled, Cheek, to extra- Deputy testified Sheriff by Moseley previously him
judicial made to statements wit- of these tended corroborate Dowd which at trial. nesses opinion. be noted in evidence will
Other burglary jury guilty in the first returned a verdict pro- imposing degree judgment a appealed. of death was sentence excepted Defendant nounced. SPRING TERM v. Poole Attorneys Attorney Morgan Assistant General Robert William, Ray
General Melvin B. W. and William State. for *7 Seawell, Pollock, Fullenwider, Camp & Robbins Van Wayne Robbins; Banning by Chambers, Stein, Ferguson P. & Stein; Legal Kendall, Adam Fund, David E. NAACP Defense York, York, appellant. New New for BOBBITT, Chief Justice. assigns
Defendant as under error the denial of his motion judgment question G.S. 15-173 for nonsuit. The as in case of presented by assignment this is was suffi- whether evidence cient jury sup- to warrant the submission thereof to the and to port guilty charged of a verdict of criminal offense indictment. testing sufficiency
The rules for of the evidence to withstand Strong, motion are 2 well established. 2d, N. Index C. Criminal The evidence Law 104. most favor- § able to the considered, State must be considered true. so When finding charged was it sufficient to warrant a that the crime committed it was committed defendant? Goines, 509, 513, v. 469, (1968), 273 N.C. 160 2d S.E. 472 cases cited. The of support Miss Maness was sufficient
finding unlawfully that an man unauthorized broke into and occupied dwelling entered her Saturday, p.m. between 9:15 and 9:30 May Arguendo, sufficiency 1973. we assume the finding of the evidence warrant a the intruder’s intent breaking entering when felony rape. was to commit the of question The crucial was whether the evidence was sufficient finding to warrant a that defendant unlawful intruder. respect question, In depends of crucial the State’s case wholly on circumstantial evidence. The rule, approval well established cited with in numerous
subsequent cases, Higgins Steph- is stated Justice in State v. ens, 380, 383-84, 431, (1956), N.C. 2d S.E. 433-34 as fol- lows: here must be substantial evidence all “[T] of material ele- ments of the offense to withstand the motion to It dismiss. is immaterial whether the substantial evidence is circumstantial or direct, grant or To both. hold that the court must a motion to unless, opinion dismiss in the court, of the evidence excludes IN THE COURT SUPREME hypothesis
every would in effect consti- of innocence reasonable judge presiding the trier of the facts. Substantial tute guilt required court send case before the can is guilt beyond required is jury. a reasonable doubt Proof to the jury is a can What substantial evidence convict. before question proves that evidence or law for the court. What jury.” question prove is a of fact for the fails evi- question is whether there was substantial The crucial entered was the intruder who Miss this defendant dence night question can of 19 This home on the 1973. Maness’s analysis after close evidence. answered be identify the intruder. Maness did defendant as Miss caught “just only time she saw the intruder was when she standing” “just ap- hall, glimpse” of him *8 The hall proximately 10 feet from the door of her bedroom. light.” lighted “by bedroom The intruder did area was [her] “a colored man and tall.” He had a speak. not He was “short- gun.” didn’t his clothes and didn’t Miss Maness see barreled wearing Although whether he a hat. she learned know was day broken, to her door had been that the lock bedroom next anything hear which caused to think it did not [her] “[she] being was broken.” called her did not see the man outside who to Miss Maness gun stop. and ordered her to No witness testified that he had identity There that he this man. is evidence left to the of vicinity Maness arrived. of Maness’s home when Wilmer Miss he as to the direction in which was travel- The evidence ing silent testify. did he left. Maness not when Wilmer approximately 6 “is feet inches.” testified defendant Cheek sawed-off on or he sold defendant “a .22 rifle” Dowd testified May Moseley Saturday, that, p.m. testified at 2:30 on 12th. about May 19th, operated was in a truck defendant. a rifle such Friday, employee Bradley, that Bruce, testified on an of given permission May (Bruce) had to 18th, he Bradley’s panel Cheek testified he first saw drive red truck. going May 19th, p.m., Saturday, at when on 9:33 truck house; unattended, approxi- truck, was Miss Maness’s house; that he mately Maness’s 2/10 a mile south Miss ignition it; key operate that the but did not checked the vehicle May 20th, (Cheek) missing; Sunday, day, he was that the next SPRING TERM 1974 State v. Poole arranged Garage; for the truck be towed to Yow’s brought ignition Bradley, truck, key the owner of the an Garage; “just (Cheek) Yow’s and at that time he started up run truck and let it for a while and shut off.” Saturday, May 19th, on Person testified that “in the eve- ning,” store,” he “at the at which time June Officer Cock- questions”; that, (Person) man “asked he when left [him] go “coming defendant, the store home” alone, “to he saw toward coming Cheek, . . . towards the road to store.” [him] recalled, testified that he “familiar with the store referred miles % Person,” approximately Mr. the “the store is road, point paved from nearest to the 1479.” The evidence reviewed above tends to show that defendant possession truck and of sawed-off “a .22 rifle” as p.m. Saturday, May 19th; late as 2:30 on and that he seen “coming by Person, towards the road to the store” didn’t who “really know what time it was.” There was no to where truck was on Satur- day, May 19th, p.m. p.m. from 2:30 until 9:33 noteWe Cheek’s testimony that, that defendant told him soon “as as he left truck, paved traveled south on the rural road and was boys picked up two that carried him to his residence.” We further note Cheek’s that defendant made no state- give picked up” ment “as to what time he was “did any persons picked up.” Apart names of who he said him defendant, these statements attributed to there was no evidence p.m. as to Saturday, where defendant was from 2:30 *9 19th, until unspecified Person saw him at some time “in the eve- ning,” and no to evidence as where defendant was from the time May
Person Sunday, saw him until Cheek 20th, saw him on at approximately a.m., 9:30 at the Robbins Police Station. Cheek, recalled, when testified the to distance from the by point paved
store referred to road. Person to the nearest of the Originally, had Cheek testified that is a store “[t]here approximately two miles the from Maness in the residence by Belview section.” is Whether the referred store to is Person obscure. place evidence reviewed above to defendant tends 2/10 of a mile south of Miss house at Maness’s some unidentified Saturday, May relating
time 19th. There was no evidence fingerprints relating of the man inside the house or to track THE COURT IN SUPREME v. Poole
State The man inside the house prints of the man outside the house. tending idéntify the speak. no evidence There was did the house that of defendant. voice outside as crime, relies of the place To at the scene relating upon testimony dark which Cheek to a brown button Sunday, May “in 20th, approximately a.m. on 3:30 found at directly laying ground on the the curtain that was the fold of At Maness residence.” open window of Tennie beneath during resi- p.m., search his second 5:45 about dence, one front bedroom a shirt which found Cheek missing. examination and com- Pearce testifed to his button was remaining by buttons parison Cheek and the found button shirt, everyday common, work The shirt was “a on the shirt. bearing “Washington Cee, per- gray cotton,” Dee the label button “could press Pearce concluded manent shirt.” shirt”; that the button could have come torn from have been by type or a particular made the same a of that shirt from different “certainly manufacturer; came and that the button on it which were identical had other buttons from shirt to it.” view, insufficient opinion evidence of Pearce is In our by finding found Cheek came from that the button warrant second search of defendant’s Cheek on his found the shirt following: addition, note In we residence. when, silent where and under what The evidence arrested, was defendant was arrested. When circumstances defendant or missing wearing from which button was shirt when in defendant’s bedroom Was shirt been torn? Cockman, defend- Cheek, accompanied first searched Officer Sunday, May approximately a.m. on 9:45 ant’s residence at Cheek, (Exhibit 8) picked up when accom- shirt 20th? The Whitaker, defend- made the second search of panied Officer custody all times between Defendant was at ant’s residence. nor the second search. Neither Cockman search and the first testified. Whitaker ground Although the half of curtain on the Cheek observed p.m. on arrived 9:33 Miss Maness’s window at
below May 19th, Saturday, he did not see the button until 3:30 a.m. custody Sunday, the curtain in the of an *10 on 20th. Was during any part period? six-hour it all or of this Was officer TERM 119 SPRING 1974 handling by during persons accessible for unauthorized period? six-hour The evidence is silent to matters. as these The evidence to is silent as whether Miss Maness used her any part dropping
bedroom curtain or thereof when from the ground the bedroom window to some 12 feet below. It is also when, by silent as to whom under what the circumstances hung. curtain had been suggests, support evidence, The State but without in the way (1) by that the intruder left the bedroom of the same win- Maness, (2) Miss dow used used to the curtain break the of force his Miss Maness descent. estimated that “two minutes” elapsed time she locked the bedroom door until she ground. During any- period, reached the that did not she hear thing being which caused her “to think broken.” [the lock] positively She testified that she did not know how man got whom she saw in Seemingly, the hall out of the house. quicker would have been easier for him to leave through side door which he entered. points
The State out that it has offered evidence which contradicts statements attributed to defendant There Cheek. gas gauge was uncontradieted evidence that on truck However, sup- broken. the State’s evidence was sufficient finding port explanation why as to Too, left the truck was false. there was evidence that defendant made a false statement ownership with reference to his of a weapon. However, assuming the statements to defend- attributed false, ant only were the evidence reviewed above is the purports place vicinity in the immediate of the home of Miss Maness at or about the time the crime was committed. the evidence most When favorable to the State sufficient suspicion conjecture raise or the accused was perpetrator charged indictment, in the mo- crime judgment tion for ease nonsuit should be allowed. Cutler, v. 379, 383, 679, 271 N.C. 156 (1967), 2d S.E. Notwithstanding cases cited. there was evidence which raises strong suspicion guilt, of defendant’s we are constrained hold there was no substantial evidence that defendant person who broke into and entered the home of Miss Maness night Jones, 60, 1973. (1971), 67, See State v. 280 N.C. 862, S.E. 2d and cases cited. *11 IN THE SUPREME. COURT
120 Poole State v. judgment Therefore, in motion for case defendant’s have allowed. should been nonsuit Reversed. dissenting. Lake
Justice unquestionably motion upon It true that is action, the judgment in a evidence of for the mitted, of nonsuit criminal including may any improperly ad State, have been true, entitled to all deemed is must be to be State any reasonably discrep drawn therefrom and inferences to be to be resolved in favor of ancies or inconsistencies therein are the 159, 156; McNeil, 280 S.E. 2d State v. N.C. 185 State. State 63, 608; Primes, Vincent, v. 275 153 v. N.C. 178 S.E. 2d State Overman, 453, 61, 225; v. State N.C. N.C. 165 S.E. 2d 2d, Law, 44; Strong, 2d N. Index 104. S.E. C. Criminal § direct, “Regardless circumstantial, evidence is or whether the jury both, from which a could find that the if there is evidence charged and that defendant com offense has been committed (Empha it, nonsuit be overruled.” mitted the motion to should 509, added.) Goines, v. 273 N.C. S.E. 2d 469. sis State judgment nonsuit, passing upon In the motion for jury to the evidence a determine whether court does is sit as beyond doubt a reasonable convince the court sufficient to charged. guilty The function of the offense that the defendant is simply made, to court, motion is is consider of the when such a including enough evidence, all inferences which whether there is may permit jury find. reasonably therefrom, to so drawn to a be evidence, supra. is for the McNeil, If there is it v. such State jury, beyond say a court, it convinced not the whether is guilt charged, offense of the defendant’s reasonable doubt 2d, Strong, N. Index included therein. C. or of a lesser offense jury Law, This convinced. 106. so Criminal § support a is, record, ample verdict There in this evidence charged in the the offense indictment— someone committed accompanying burglary degree, intent in the first the felonious breaking entering being rape the female the intent occupant undisputed of the. of the house. getting just to her home as it was Maness Miss returned burning having light reading, a dark and was in bed thus Negro dark, man and entered the her After broke bedroom. through locked, carried firéarm. outside door. He house N.c:] TERM 1974 SPRING observing Maness, hallway, him the slammed the Miss door through escaped to her and locked bedroom window. she, assistance, those who to her came reentered When house immediately disturbing concluded, after the were events open splin- locked door the bedroom had been the tered. forced *12 The intruder called to house, her as she fled from the got gun.” saying, “Stop, I’ve a It not is conceivable that the breaking purpose entering, and under these circumstances, rape occupant than to the was other of the home. remaining question enough The is whether there was evi- jury permit per-
dence to a to find that the defendant was the petrator offense. The of this man that the is intruder was a defendant a man, “colored and tall.” The is colored six feet height. panel red, by deputy two sheriff, shortly A truck inches was found the occurred, after this break-in rural road quarter than a of a mile from the less defendant drove Maness residence. The point it shortly to that and left it there before at the the breák-in Maness residence. There was no residence closer to the truck than the key Maness residence. There was no questioned following morning in the truck. the When about his point, the truck at abandonment officer he that the defendant told the gas. Obtaining ignition had run out'of key an owner, promptly the the officer the started truck without diffi- culty; investigating also told the .The officer that he years. had a firearm in had not purchased several The evidence prior sawed-off rifle one week to this occurrence possession a breaking had it in his few hours before entering occurred. through bedroom, The curtain at the window of the escaped deputy house, Miss Maness from the found ground lying sheriff on the outside the when he arrived window premises shortly breaking entering on the after occurred. later, continuing officer, investigation, Six hours his found in the fold of this curtain a The button. record indicates that discovery this was made six hours before the defendant was any arrested. Miss testified Maness did not come from garments. following day, of her ant The the residence defend- searched, permission, shirt, with his from which missing, a button was was found officers. button lying ground found in the curtain, fold of the on the outside exactly bedroom, the window of Miss Maness’ matched remaining buttons on the shirt so taken from the defendant’s THE COURT IN SUPREME DeGregory size, shape, color and texture of residence, remaining button, thread in the holes of also as to the but other the thread which the buttons found and the button so to the shirt. were attached say not sufficient to submit to a this evidence is To determination, question defend- of whether this jury, for its doubt, the intruder into the Maness beyond ant, a reasonable my completely opinion, at variance with the above is, in home judg- governing of a motion for a the determination rules stated nonsuit. ment of Higgins dissenting join opin- and Huskins
Justices ion. DeGREGORY OF NORTH CAROLINA v. KARL
STATE *13 4No. (Filed April 1974) — premeditation proof by deliberation circum- § Homicide stantial evidence 1. 18— usually susceptible and deliberation are not of direct Premeditation susceptible proof proof circumstances are therefore may sought proved to be be inferred. the facts premeditation con- and deliberation —circumstances to Homicide § 2. 18— sider determining Among the circumstances to be considered in whether provoca- killing premeditation and deliberation are want of was with deceased, part of the conduct of defendant before and tion on the grossly dealing killing, use of excessive force or the after has been felled. lethal blows after deceased — premeditation sufficiency deliberation 21— of cir- Homicide § 3. cumstantial evidence the evidence tended to show that defendant shot one victim Where times, other victim three through that both and the victims' died twice heart, >result of shots and that severe head wounds which upon exposed skull were inflicted both victims before the shots ingredients fired, premeditation necessary were and deliberation degree inferred, properly be in first denied murder could and the trial court defendant’s motion for nonsuit.