State v. Simmons , 240 N.C. 780 ( 1954 )

83 S.E.2d 904 (1954) 240 N.C. 780

STATE
v.
Odessa Williams SIMMONS.

No. 217.

Supreme Court of North Carolina.

October 20, 1954.

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen. and William P. Mayo, Washington, Member of Staff for the State.

Matt H. Allen, Kinston, Paul B. Edmundson, Goldsboro, for defendant appellant.

WINBORNE, Justice.

The sole assignment of error presented on this appeal challenges the ruling of the trial court in denying defendant's motions for judgment as of nonsuit, aptly made, pursuant to the provisions of G.S. § 15-173.

When the sufficiency of the evidence offered on the trial in Superior Court is challenged by motion for judgment as of nonsuit under G.S. § 15-173, the evidence is to be taken in the light most favorable to the State.

Nevertheless, when the State, as in the case in hand, has introduced in evidence the statement of defendant, the statement is presented as worthy of belief. And when such statement tends to exculpate defendant, he is entitled to whatever advantage it affords, even to an acquittal when it is wholly exculpatory. However, the State by offering the statement of defendant is not precluded from showing that the facts were different. See State v. Fulcher, 184 N.C. 663, 113 S.E. 769; 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. Gordon, 225 N.C. 757, 36 S.E.2d 143; State v. Phillips, 227 N.C. 277, 41 S.E.2d 766; State v. Coffey, 228 N.C. 119, 44 S.E.2d 886; State v. Robinson, 229 N.C. 647, 50 S.E.2d 740; State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349; State v. Jarrell, 233 N.C. 741, 65 S.E.2d 304; State v. Tolbert, 240 N.C. 445, 82 S.E.2d 201.

In this connection the statement of defendant, made to the State Highway patrolman, considered as worthy of belief, would exculpate the defendant of the single charge against her, that is, that she "did unlawfully and wilfully operate a motor vehicle on the public highways of Wayne County, N. C., in a careless and reckless manner with a wilful and wanton disregard for the rights and safety of others". She thought she was not driving more than 50 miles per hour, that is, within the limit of the law. No one contradicts her. And she argues through her attorney that she was confronted with a sudden emergency, created by the switching on of lights of another automobile. They contend that she followed what this Court said in Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337, and in Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246, 251, is "``a human instinct when a collision is impending between two vehicles to turn or cut away from the other vehicle'"; and that in those cases the evidence discloses that the turning or cutting away was done in an effort to avoid the collision. To this the Court said that "``there is no circumstance tending to show that it was other than what a man of reasonable prudence would have done'". If this be so, then a "wilful and wanton disregard of the rights and safety of others" is absent from her conduct under the circumstances.

But it is contended by the State that there is evidence of circumstances from which it may be reasonably inferred that defendant was driving at an excessive rate of speed, and that the course of her automobile after it left the highway is indicative of "wilful and wanton disregard" with which she was operating it on the highway.

However, in passing upon the legal sufficiency of this evidence, it must be borne in mind that when the State relies upon circumstantial evidence for a conviction of a criminal offense, as in this case, "the rule is, that the facts established or adduced on the hearing must be of such a nature and so connected or related as to point unerringly to the defendant's guilt and exclude any other reasonable hypothesis." State v. Harvey, 228 N.C. 62, 44 S.E.2d 472, 474; State v. Coffey, supra; State v. Hendrick, supra, and cases cited.

While the probative weight of legally sufficient proof is for the jury, the sufficiency of proof in law is for the court. State v. Prince, 182 N.C. 788, 108 S.E. 330.

So, in considering a motion for judgment of nonsuit under G.S. § 15-173, the general rule, as stated in State v. Johnson, 199 N.C. 429, 154 S.E. 730, 731, and in numerous other cases before this Court, is that "if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion asa fairly logical and legitimate deduction, and not merely such as raises a suspicionor conjecture in regard to it, the case should be submitted to the jury." But where there is merely a suspicion and conjecture in regard to the charge in the bill of indictment against defendant, the motion for judgment of nonsuit will be allowed.

Hence in the light of defendant's statement taken in connection with other evidence of facts and circumstances in respect to the movement of the automobile after it left the highway, this Court is constrained to hold that the evidence leaves the case in conjecture in regard to the charge against defendant,—entitling her to a nonsuit.

Reversed.