State v. Miller , 270 N.C. 726 ( 1967 )

154 S.E.2d 902 (1967) 270 N.C. 726

STATE of North Carolina
v.
Manuel Savanus MILLER.

No. 260.

Supreme Court of North Carolina.

June 20, 1967.

Atty. Gen. T. W. Bruton, Staff Atty. Ralph A. White, and Staff Atty. Wilson B. Partin, Jr., Raleigh, for the State.

Sanders, Walker & London, by James E. Walker, Charlotte, and Arnold M. Stone, Winston-Salem, for defendant appellant.

LAKE, Justice.

This Court has said many times that upon a motion for judgment of nonsuit in a prosecution for a criminal offense, the evidence must be interpreted in the light most favorable to the State, and all reasonable inferences favorable to the State must be drawn from it. State v. Bridgers, 267 N.C. 121, 147 S.E.2d 555; State v. Roux, 266 N.C. 555, 146 S.E.2d 654; Strong, N. C. Index, Criminal Law, § 99. Ordinarily, the credibility of witnesses and the proper weight to be given their testimony is to be determined by the jury, not by the court upon a motion for judgment of nonsuit. State v. Orr, 260 N.C. 177, 132 S.E.2d 334. In State v. Bowman, 232 N.C. 374, 61 S.E.2d 107, Ervin, J., speaking for the Court, said:

"The defendant insists secondarily, however, that the testimony of the State tending to show his guilt was incredible in character, and that the trial court ought to have nonsuited the action on the ground that the witnesses giving it were unworthy of belief. * * * In ruling on such motion, the court does not pass upon the credibility of the witnesses for the prosecution, or take into account any evidence contradicting them offered by the defense. The court merely considers the testimony favorable to the State, assumes it to be true, and determines its legal sufficiency to sustain the allegations of the indictment. Whether the testimony is true or false, and what it proves if it be true are matters for the jury."

Thus, in State v. Humphrey, 261 N.C. 511, 135 S.E.2d 214, this Court, in sustaining the denial of a motion for judgment of nonsuit, said:

"We are not impressed with the argument that we should hold, as a matter of law, that the lights on the street and automobile were not bright enough to enable the witness to recognize the defendant. The court properly left that question to the jury." (Emphasis added.)

Again, in State v. Guffey, 265 N.C. 331, 144 S.E.2d 14, this Court, in affirming the denial of a motion for nonsuit on the charge of robbery, said:

"The question whether the testimony of the prosecuting witness, tending to identify appellant as one of the robbers, has any probative force was for the jury."

This rule does not apply, however, where the only evidence identifying the defendant as the perpetrator of the offense is inherently incredible because of undisputed facts, clearly established by the State's evidence, as to the physical conditions under which the alleged observation occurred. In Jones v. Schaffer, 252 N.C. 368, 114 S.E.2d 105, Bobbitt, J., speaking for the Court, in sustaining a judgment of nonsuit in an action for damages, said:

"Ordinarily, the weight to be given the testimony of a witness is exclusively a matter for jury determination. Even so, this rule does not apply when, as here, the only testimony that would justify submission of the case for jury consideration is in irreconcilable conflict with physical facts established by plaintiff's uncontradicted evidence. * * *

"``As a general rule, evidence which is inherently impossible or in conflict with indisputable physical facts or laws of nature is not sufficient to take the case to the jury, and in case of such inherently impossible evidence, the trial court has the duty of taking the case from the jury.' 88 C.J.S. Trial § 208(b) (5); Powers v. S. Sternberg & Co., 213 N.C. 41, 43, 195 S.E. 88; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337; Tysinger v. Cable Dairy Products, 225 N.C. 717, 723, 36 S.E.2d 246; Carr v. Lee, supra [249 N.C. 712, 107 S.E.2d 544]."

Similarly, in Keith v. United Cities Gas Co., 266 N.C. 119, 146 S.E.2d 7, we said:

"The rule that, in passing upon a motion for judgment of nonsuit, the plaintiff's evidence must be taken to be true does not extend to an opinion by a witness, not present at the event, to the effect that a condition existed which is contrary to scientific truth so well established that the court will take judicial notice of it."

Upon a motion for judgment of nonsuit in a criminal action, the function of the court and its authority to consider the credibility of the evidence offered by the State, are the same as the function and authority of the court upon a similar motion in a civil action with reference to evidence offered by the plaintiff. State v. Ormond, 211 N.C. 437, 191 S.E. 22; State v. Sigmon, 190 N.C. 684, 130 S.E. 854; State v. Fulcher, 184 N.C. 663, 113 S.E. 769.

Without the testimony of Richard Melton, there would be a complete failure of the State's evidence to connect the defendant Miller with the offense with which he is charged. Melton's own testimony shows that he was never closer than 286 feet from the man whom he saw running along the side of the Oil Company building. He saw this man run once in each direction, stop at the front of the building, "peep" around it and look in Melton's direction. Melton did not then know Miller. Thus, his testimony is not that he recognized at that distance a man previously known to him, but that he saw for the first time a stranger. Some six hours later, he saw Miller in a police "lineup," so arranged that the identification of Miller with the man seen earlier would naturally be suggested to the witness.

Notwithstanding the fact that the exterior of the Oil Company building and the surrounding area were well lighted, it is apparent that the distance was too great for an observer to note and store in memory features which would enable him, six hours later, to identify a complete stranger with the degree of certainty which would justify the submission of the guilt of such person to the jury.

It is to be noted that immediately after observing the man who ran beside the Oil Company building, Melton described him to the police as one substantially taller than the defendant Miller actually is and otherwise described him only as a man dressed in dark clothing.

Where there is a reasonable possibility of observation sufficient to permit subsequent identification, the credibility of the witness' identification of the defendant is for the jury, and the court's doubt upon the matter will not justify granting a motion for judgment of nonsuit, but upon the physical conditions shown here by the State's evidence, the motion should have been allowed.

Reversed.