State v. . Vinson
63 N.C. 335
N.C.
1869
Check Treatment
RodhaN, J.

There was ample evidence to convict the pris- • oner óf having stolen the mule from the residence of Best, on. *338 Sunday nigbt, if the jury believed it. But we cannot know that the jury did believe it, and that they did not find him guilty of the larceny, which the case states was committed by some one, on the previous Saturday night from the residence of Mrs. Wooten. State v. Allen, 1 Hawks, 6; State v. Ingold, 4 Jon. 217. The Judge told'the jury, in effect, that there was evidence, from which they might find, that the prisoner either stole the mule himself on the Saturday night, or procured it to be done; to which the prisoner excepted. All the other exceptions taken by the prisoner, are properly abandoned in this Court. So that the only question is, whether the case shows any evidence tending to prove the guilt of the prisoner on the Saturday night. It is easy enough to express in general terms the rule of law; if there be any evidence tending to prove the fact in issue, the weight of it must be left to the jury, but if there be no evidence conducing to that conclusion, the Judge should so say, and, in a criminal case, direct an acquittal. Hepburn v. Dubois, 12 Peters, 345; Gibson v. Hunter, 2 H. Bl. 205.

But it is confessedly difficult to draw the line between evidence which is very slight, and that, which, as having no bearing on the fact to be proved, is, in relation to that fact, no evidence at all. We may say with certainty, that 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. Matthis v. Matthis, 3 Jon. 132; Sutton v. Madre, 2 Jon. 320. We may go farther, and say that the evidence must be such as will support a reasonable inference of the fact in issue. 1 Phil. Ev. 460. In Bex v. Burdett, 4 B. and A. 161, (6 E. C. L. R.,) Abbott, J., says “ a presumption of any fact is properly an inference of that fact, from other facts that are known; it is an act of reasoning.”

Probably the rule in such cases can never be more definitely declared, than it was by this Court in Hart v. Newland, 3 Hawks, 122. There, Henderson, J., delivering the opinion of the Court, says: “ Evidence is of two kinds; that which, if *339 true, directly proves tbe fact in issue, and that which, proves ■another fact, from which the fact in issue may be inferred. The rules regarding competency, only apply to the first .kind, and relevancy to the second. The Court protects the jury both from incompetent and irrelevant evidence” — “ the rules of evidence are framed more with a view to exclude falsehood, than to let in the truth.” “ That the tact to be inferred often accompanies the fact proven, is not sufficient; it should most usually accompany it; and I would say, in the absence •of all circumstances, that it should rarely otherwise happen.

In Roscoe’s Crim. Ev. p. 14, citing Gilbert's Ev. 157, (1) •the same ruléis declared; “when the fact itself cannot be proved, that which comes nearest the proof of the fact, is the proof of the circumstances that necessarily and usually attend .such fact.” If the fact offered to be proved, be equally consistent with the existence, or non-existence of the fact sought to be inferred from it, the evidence can furnish no presumption either way, as in such a case, the one fact does not most usually attend the other. With the aid of these general principles, we may proceed to consider the particular question presented in this case. In doing so, we must of course regard •only the affirmative evidence in the case. The evidence is circumstantial. The fact to be proved is the guilt of the prisoner on Saturday night, and the facts from which it is sought •to be inferred are the occurrences on the next day. Were they such as to furnish a reasonable inference of the main fact?

The first time'that the evidence directly brings the prisoner into any connexion with the mule, is on the Sunday morning, when it came to the house of Mrs. Woodward, where the prisoner resided, having on it a broken bridle. It must be assumed that the mule had been tied out to a tree during some part of the preceding night, and had broken loose. The prisoner then took the mule to the house of Best. It is quite immaterial whether he did this, because there was at Mrs. Woodward’s no place proper to confine it in, or because he then formed the design of stealing it, and conceived that it would be more .safely done from the house of Best, than from his mother’s. We *340 tin'nb it must be admitted that, had the evidence stopped here,, no one could do more, at the utmost, than conjecture, that the prisoner carried the mule to Best’s house, because he had stolen it from Mrs. Wooten’s house the night before. About, ten o’clock that morning, Thomas and Smith came to Mrs. Woodward’s house, and inquired for the prisoner, and a stray" mule. On that night the prisoner and Thomas stole the mule from the possession of Best. The question is then reduced to this; are any of the facts proved, either singly or in combination, such as necessarily, or most usually, or often, attend a prior theft ? Are they not, either singly or combined, consistent with the innocence of the prisoner of the theft on the Saturday night ? No doubt, the theft on Sunday night proved the possibility of the prisoner’s guilt; that he was not too good to steal. But if it proved no more than this, and we think it proved no more in respect to the theft on Saturday night, then it was not evidence of his guilt of that particular theft. The1 general bad character of a prisoner cannot be given in evidence-, to convict him of any particular charge. State v. O’Neal, 7 Ire. 251; Homesley v. Hogue, 2 Jon. 391, 3 Greenleaf on Ev. § 25, — nor can it be proved that at another time, he committed an offence similar to that charged, or that he had a tendency to commit such offences; 1 Phil. Ev. 477. There is some similarity between the present case and that of The King v. Vandercomb and Abbott, 2 Leach’s Cr. Ca. 708. In that case a, burglary and larceny had been committed by some one; after-wards the prisoners were detected and arrested after they kadi committed a burglary in 'the same house, but before they had committed any larceny on that occasion. They were indicted for burglary and larceny. The Judge said they could not be-convicted of the second burglary, because no larceny attended it. The prosecution contended, that they could be convicted of the first burglary and larceny, although the only evidence of their connexion with it was, that they had committed the .second burglary. The Judge directed an acquittal. It is true that the Judge put his directions on the ground, that the prosecutor having given evidence of one felony, could not go into *341 ¡proof of a distinct and substantive one; but if the second burglary could have been received as any evidence to connect the prisoners with the prior burglary and larceny, it would have ■been the duty of the Judge to have left the weight of it to the jury, instead of directing an acquittal. We think there was arror in the instructions of the Judge below, and the prisoner .must have a new trial.

Pee Cueiam. Venire de novo.