State v. Jarrell , 233 N.C. 741 ( 1951 )

65 S.E.2d 304 (1951) 233 N.C. 741

STATE
v.
JARRELL.

No. 721.

Supreme Court of North Carolina.

June 7, 1951.

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Walter F. Brinkley, Member of Staff, Raleigh, for the State.

R. F. Crouse, Sparta, Folger & Folger, Mount Airy, for defendant appellant.

WINBORNE, Justice.

The statute, G.S. § 14-32, declares that "any person who assaults another with a deadly weapon with intent to kill, and inflicts serious injury not resulting in death, shall be guilty of a felony * * *". This is the crime of which defendant stands convicted. The validity of such conviction is challenged by his assignments of error. The one chiefly advanced by him, and properly so, we hold, is based upon exception to the denial of his motion, aptly entered at the close of all the evidence, for judgment of nonsuit in accordance with the provisions of G.S. § 15-173.

When the sufficiency of the evidence offered on the trial in Superior Court is so challenged, the evidence is to be taken in the light most favorable to the State. And it is noted in the present case that the evidence is both circumstantial and direct.

The State relies upon the circumstantial evidence to sustain the conviction. But the direct evidence offered by the State wholly exculpates the defendant from guilt of the crime charged.

While circumstantial evidence is a "recognized and accepted instrumentality in the ascertainment of truth", State v. Coffey, 210 N.C. 561, 187 S.E. 754, 755, when the State relies upon such evidence for a conviction of a felony, as in the present case, "the rule is, that the facts established or adduced on the hearing must be of such nature and so connected or related as to point unerringly to the defendant's guilt and to exclude any other reasonable hypothesis", Stacy, C. J., in State v. Harvey, 228 N.C. 62, 44 S.E.2d 472, 474, citing State v. Stiwinter, 211 N.C. 278, 189 S.E. 868. See also State v. Coffey, 228 N.C. 119, 44 S.E.2d 886; State v. Minton, 228 N.C. 518, 46 S.E.2d 296; State v. Frye, 229 N.C. 581, 50 S.E.2d 895; State v. Fulk, 232 N.C. 118, 59 S.E.2d 617; State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349; State v. Webb, 233 N. C. 382, 64 S.E.2d 268.

The guilt of a person charged with the commission of a crime is not to be inferred merely from facts consistent with his guilt. They must be inconsistent with his innocence. State v. Massey, 86 N.C. 658; State v. Harvey, supra; State v. Webb, supra.

"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 a jury." State v. Vinson, 63 N.C. 335. See also State v. Webb, supra, and cases there cited.

"Evidence of motive is relevant as a circumstance to identify the accused as the perpetrator of an offense * * * but such evidence, standing alone, is not sufficient to carry a case to the jury, or to sustain a conviction", Ervin, J., in State v. Palmer, 230 N.C. 205, 52 S.E.2d 908, 913, and cases cited.

Also evidence of threats, when competent, as in the case in hand, without evidence connecting the defendant with the execution of them, or with the offense charged, is insufficient to take the case to the jury. See State v. Rhodes, 111 N.C. 647, 15 S.E. 1038, 1039; State v. Freeman, 131 N.C. 725, 42 S.E. 575.

In the Rhodes case, McRae, J., speaking for this Court, said: "The evidence must be more than sufficient to raise a suspicion or conjecture."

In the light of these principles, the circumstantial evidence shown in the record on this appeal, and on which the State relies, does no more than point a finger of suspicion against defendant. It is entirely consistent with his innocence. It lacks sufficient probative value to support the verdict against defendant.

Now, turning to the direct evidence: It is a settled rule of law in this State that "where a complete defense is established by the state's evidence, a defendant should be allowed to avail himself of such defense on a motion for judgment as of nonsuit". State v. Fulcher, 184 N.C. 663, 113 S.E. 769, 770. The rule is recognized and applied in these cases: State v. Cohoon, 206 N.C. 388, 174 S.E. 91; State v. Todd, 222 N.C. 346, 23 S.E.2d 47; State v. Baker, 222 N.C. 428, 23 S.E.2d 340; State v. Boyd, 223 N.C. 79, 25 S.E.2d 456; State v. Watts, 224 N.C. 771, 32 S.E.2d 348; State v. Coffey, 228 N.C. 119, 44 S.E.2d 886; State v. Robinson, 229 N.C. 647, 50 S.E.2d 740, 741.

In the Robinson case, Barnhill, J., writing for the Court, summarized the rule in this manner: "When, however, the State's case is made to rest entirely on testimony favorable to the defendant, and there is no evidence contra which does more than suggest a possibility of guilt or raise a conjecture, demurrer thereto should be sustained", citing cases.

The State, by offering Robe Cockerham as its witness, presents him as worthy of belief. Too, the State by offering the statement of defendant, made to the witness Scott, that "he didn't know anything about the shooting", presented it as worthy of belief. State v. Todd, supra. State v. Coffey, 228 N.C. 119, 44 S.E.2d 886.

And the testimony of Robe Cockerham places defendant in his own field plowing at the time the shot was heard,— the only shot that morning,—so far as the evidence reveals. There is no evidence to the contrary. And defendant is entitled to an acquittal.

For reasons stated the judgment below is reversed.