State v. Tolbert , 240 N.C. 445 ( 1954 )

82 S.E.2d 201 (1954) 240 N.C. 445

STATE
v.
TOLBERT.

No. 657.

Supreme Court of North Carolina.

June 4, 1954.

Atty. Gen. Harry McMullan and Asst. Atty. Gen. T. W. Bruton, for the State.

T. Glenn Henderson, Percy Wall, Robert S. Cahoon, Greensboro, for defendant appellant.

BARNHILL, Chief Justice.

It is axiomatic with us that when a complete defense is made out by the State's evidence, a defendant should be allowed to avail himself of such defense on a demurrer to the evidence under G.S. § 15-173. This is true even when the exculpating evidence is in the form of statements of defendant offered in evidence by the State. State v. Watts, 224 N.C. 771, 32 S.E.2d 348; State v. Todd, 222 N.C. 346, 23 S.E.2d 47; State v. Robinson, 229 N.C. 647, 50 S.E.2d 740.

The State, by offering evidence of the declarations or admissions of a defendant, is not precluded from showing that the facts are other than as related by him. State v. Robinson, supra. And when the substantive evidence offered by the State is conflicting—some tending to inculpate and some tending to exculpate the defendant—it is sufficient to repel a demurrer thereto. State v. Edwards, 211 N.C. 555, 191 S.E. 1; State v. Todd, supra; State v. Robinson, supra.

When, however, the State's case must rest entirely on declarations made by 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. State v. Robinson, supra, and cases cited. In such case, the declarations of the defendant are presented by the State as worthy of belief, State v. Watts, supra, and when they are wholly exculpatory, the defendant is entitled to his acquittal. State v. Cohoon, 206 N.C. 388, 174 S.E. 91; State v. Robinson, supra.

When the evidence relied on by the State is analyzed and appraised in the light of these principles of law, it becomes apparent, in our opinion, that the defendant's demurrer to the evidence should have been sustained.

There was evidence of some minor incriminating circumstances, and the testimony tends to show that the defendant made false and contradictory statements shortly after the homicide. In the main, however, the foregoing statements of facts represent a summary of all the testimony the State was able to produce aside from the evidence of statements the defendant made to the officers. While it may point the finger of suspicion at the defendant, it must be conceded that it is wholly insufficient to support the verdict of the jury.

The State must rest its case upon the statements made by the defendant about which the officers testified. Eliminate those statements and there is no case. If his statements and admissions will not support a verdict against him, but, instead, tend to exculpate him, then the exception to the denial of his demurrer to the evidence was well advised. State v. Watts, supra; State v. Todd, supra; State v. Robinson, supra.

So then, the decisive question is this: Does the evidence of statements made by defendant, which the State presented as worthy of belief, make out a complete defense and entitle him to acquittal? We are inclined to the view that it does.

After wandering around with deceased and Grubb from beer stand to beer stand, looking for women, during the early hours of the night, defendant took deceased to ride in an attempt to sober him and persuade him to go home. After reaching Phillips Avenue, thinking that deceased had agreed to go home, the defendant drove off on a dirt road to avoid turning around on the highway. He went about 67 steps and backed into a narrow intersecting road. His rear wheels ran into holes in the side road, and he stopped. Deceased, for personal reasons, got out. Deceased had a bottle of liquor. Defendant declined a drink and said that deceased could not have liquor on his (defendant's) automobile. Deceased then went around the automobile to defendant's side, opened the door, and said he was going to cut defendant's throat. Defendant jumped out and struck deceased in the face with his fists four or five times. He knocked deceased down. When deceased got up, the defendant ran to his automobile and drove off, leaving deceased standing in the woods.

Thereafter, some one assaulted deceased with some blunt instrument which has never been found, and dragged him some distance to the culvert at the foot of the avenue fill. Who committed this crime the record fails to disclose. It may have been the defendant. As to this we may only surmise. The fact remains that the evidence offered by the State leaves the deceased standing in the woods as defendant departed on his automobile to return to his home in Greensboro. Thus the State's evidence takes the defendant from the scene of the homicide before it occurred.

There is no testimony independent of these declarations which tends to place defendant at the scene of the homicide at or about the time it was committed, and this testimony offered by the State exculpates him. Hence the Watts, Todd, and Robinson cases above cited are controlling.

Furthermore, the evidence of the coroner, offered by the State, negatives any suggestion that the deceased was fatally injured by the blows defendant admittedly struck with his fists. There was a fracture at the base of the brain which extended through the bone. The left side of his face was bruised and blue. After his scalp was retracted, the coroner discovered eight distinct bloody contusions on the surface of the skull. They appeared to have been made by a blunt instrument. There had been a very extensive brain hemorrhage extending over the frontal and both temporal lobes of the brain which caused his death.

It follows that the order of the court overruling defendant's demurrer to the evidence must be

Reversed.