In re Mash , 63 N.C. App. 130 ( 1983 )

PHILLIPS, Judge.

The only question requiring our determination is whether the evidence presented against the respondent juvenile was sufficient to prove that he committed the offenses for which he was tried. In resolving the question, we have been guided by the legal principles stated below, all of which are familiar to the profession and basic to our system of jurisprudence.

While charges against juveniles are not processed the same way criminal charges against adults are, the constitutional and legal requirements for proving them are the same. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed. 2d 368 (1970). The first step in convicting one of crime in this country is to prove that the crime charged has been committed by somebody — the second that the defendant committed it — and the failure to prove the first proposition is no less fatal to the prosecution than failing to prove the second. State v. Chapman, 293 N.C. 585, 238 S.E. 2d 784 (1977); 23 C.J.S., Criminal Law § 916(1) (1961); 1 Wharton’s Criminal Law § 28 (14th ed. 1978). The State had the burden to prove respondent’s guilt beyond a reasonable doubt by substantial evidence covering all material elements of the offenses charged. Matter of Meant, 51 N.C. App. 153, 275 S.E. 2d 200 (1981); In re Vinson, 298 N.C. 640, 260 S.E. 2d 591 (1979). If the respondent’s conviction was not based on evidence, but was arrived at by mere surmise and speculation, it cannot stand. State v. Burton, 272 N.C. 687, 158 S.E. 2d 883 (1967).

Though the evidence shows plainly enough that on the night involved the respondent engaged in considerable activity of a criminal nature, and there is some indication in the record that other evidence could have been introduced against him, the evidence that was introduced, which is all that we can consider and rest our decision upon, is not sufficient, in our judgment, to establish that respondent committed any of the offenses that he was tried for. Therefore, the judgment appealed from is vacated and upon return of the matter to the District Court, judgments of acquittal will be entered in all three cases.

First of all, except for Jack Pierce’s testimony showing that his chicken house had been broken into and damaged, the evidence failed to establish that any of the many crimes alleged had been committed. The demise of Jack Pierce’s chickens was not shown to be due to any criminal act by anybody, since the only evidence relating thereto was his testimony that he did not know whether they were killed or just died. None of the other alleged property owners testified, nor did anyone else who knew that the properties had been violated or damaged by someone other than the owners, and without their consent. The officer’s testimony that he saw the damaged properties did not establish that the crimes had been committed, but only what their results were. The absence of such evidence in these cases was as fatal as the State’s failure to show that accident was not the cause in a burning case. State v. Brown, 308 N.C. 181, 301 S.E. 2d 89 (1983). In that case, it should be noted, the State had a full confession, whereas here there was only the beginning of one.

Secondly, since the trial judge made no finding that respondent damaged any of the mailboxes referred to in the third petition, that was tantamount to a finding of not guilty as to those charges, and a judgment of acquittal would have to be entered as to them, in any event.

Thirdly, though the recorded evidence does establish that on the night involved the respondent visited two chicken houses that were vandalized by his companion, and the evidence supports the inference that he aided and abetted whatever crimes were committed there, it is, nevertheless, insufficient to show that either of those places belonged to either Ernest Pierce or Jack Pierce, the property owners designated in the other two petitions. Proving that respondent broke into two chicken houses was not enough on this point —what the State had to prove was that he broke into the chicken houses of Ernest and Jack Pierce, and that was not done.

According to the investigating officer’s testimony, several chicken houses scattered over a “wide area” of Wilkes County were vandalized that night; yet the respondent’s statement, read into evidence and apparently relied upon as a confession, refers to only two such places and does not identify either, even indirectly. Earlier in his testimony, by affirmatively answering a question put to him by the District Attorney, the officer seemingly filled this gap by saying that he had determined in his discussion with Billy Wade Mash that the property that he had investigated and observed the damage on was the same property as related to him by Billy Wade Mash. But that was not evidence, it was surmise, as the officer’s answers to the questions asked him by the Court make plain, his testimony, without qualification or later contradiction, being that respondent could not identify or locate any of the places that he went to, or even the roads that they were situated on. Thus, the officer’s “determination” that the chicken places that Mash went to were the same ones that he investigated is devoid of legal effect. If the State had evidence that the places were the same, it was not presented. From the evidence that was presented, it is just as likely that the two chicken houses that respondent went to belonged to two other people in that wide area involved, whose places were damaged that night, as that they belonged to either Ernest Pierce or Jack Pierce.

Though the respondent may deserve punishment for the pointless and wanton destruction of the property of others, as there are few crimes that are less excusable, under the legal principles that govern his case, he is nevertheless entitled to be acquitted of all charges, and it is so ordered.

Reversed and remanded.

Judges WEBB and BECTON concur.