State v. Bass , 253 N.C. 318 ( 1960 )

116 S.E.2d 772 (1960) 253 N.C. 318

STATE
v.
Fred BASS, Jr.

No. 292.

Supreme Court of North Carolina.

November 9, 1960.

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

H. E. Beech, Kinston, W. G. Pearson, II, Durham, for defendant appellant.

WINBORNE, Chief Justice.

At the outset of this appeal counsel for the accused, conceding for sake of argument that the defendant's confession was voluntary, contends that "a naked extrajudicial confession uncorroborated by independent evidence and proof of corpus delicti, is insufficient to sustain a conviction of the crime charged." In other words, the defendant contends the case should have been nonsuited because, even if the confession were admissible, there was not, as a matter of law, sufficient evidence aliunde the confession to carry the case to the jury. G.S. § 15-173.

In Wharton's Criminal Evidence (12th Ed.), Vol. 2, Sec. 393, p. 130, it is said:

"The proof of every crime consists of: (1) Proof that the crime charged has been committed by someone; and (2) proof that the defendant is the perpetrator of the crime. The first element is the body of the crime, or corpus delicti; the second is the proof of the defendant's connection with the crime, i. e., his guilty participation.

"It is practically universally held that the corpus delicti of a crime cannot be proved by an extra-judicial confession standing alone. Thus a verdict of guilty and a subsequent conviction cannot be sustained upon an extrajudicial confession only. Stated conversely, the rule is that an extrajudicial confession of the accused must be corroborated by independent proof of the corpus delicti of the crime."

This states succinctly the law of this State. See the following cases: (a) State v. Norggins, 215 N.C. 220, 1 S.E.2d 533, 535, where the Court held that: "It is fundamental law that the proof of a charge in criminal cases involves the proof of two distinct propositions: (1) That the act itself was done, and (2) that it was done by the person or persons charged. The proof of the corpus delicti is just as essential as is the proof of the identity of the person committing the offense, and proof thereof is a prerequisite to a conviction."

(b) State v. Edwards, 224 N.C. 577, 31 S.E.2d 762, 763, where it is held that: "Proof of a charge, in criminal causes, involves the proof of two distinct propositions: first, that the act itself was done, and secondly, that it was done by the person charged, and by none other—in other words, proof of the corpus delicti and of the identity of the prisoner. Hence before there can be a lawful conviction of a crime, the corpus delicti—that is, that the crime charged has been committed by someone— must be proved. Unless such a fact exists there is nothing to investigate."

Moreover, in State v. Cope, 240 N. C. 244, 81 S.E.2d 773, 776, in opinion by Denny, J., it is said: "In our opinion, none of the above cases authoritatively holds that a naked extra-judicial confession, uncorroborated by any other evidence, is sufficient to sustain the conviction of a defendant charged with the commission of a felony. * * * Therefore, it is our considered judgment that in such cases there must be evidence aliunde the confession of sufficient probative value to establish the fact that a crime of the character charged has been committed."

Indeed, in State v. Thomas, 241 N.C. 337, 85 S.E.2d 300, 302, in opinion by Parker, J., the Court states: "* * * The general rule is well settled that a naked extra-judicial confession of guilt by a defendant charged with crime, uncorroborated by any other evidence, is not sufficient to sustain a conviction."

Therefore, the question to be decided now is whether there is evidence of sufficient probative value aliunde the confession to establish the fact that the crime charged has been committed. And in this regard, the State relies solely on the fact that tracks allegedly made by the accused were found at the scene of the alleged crime. In State v. Palmer, 230 N.C. 205, 52 S.E.2d 908, 913, Ervin, J., said: "In the nature of things, evidence of shoeprints has no legitimate or logical tendency to identify an accused as the perpetrator of a crime unless the attendant circumstances support this triple inference: (1) That the shoeprints were found at or near the place of the crime; (2) that the shoeprints were made at the time of the crime; and (3) that the shoeprints correspond to shoes worn by the accused at the time of the crime (citations omitted). * * * Moreover, the bare opinion of a witness that a particular shoeprint is the track of a specified person is without probative force on the question of identification. State v. Reitz (83 N.C. 634). * * * The great master, Dean Wigmore, had this to say on this phase of the law of evidence: ``No doubt a witness to the identity of footmarks should be required to specify the features on which he bases his judgment of identity; and then the strength of the inference should depend on the degree of accurate detail to be ascribed to each feature and the unique distinctiveness to be predicated of the total combination. Testimony not based on such data of appreciable significance should be given no weight.' Wigmore on Evidence, (3rd Ed.), section 415."

In applying the rules as laid down in the Palmer case, supra, to the present case, we find that there was evidence of some footprints within six or eight feet of the window of the Hardy house. Just when and by whom the tracks were made is not made to appear. In the language of State's witness, Deputy Sheriff Hardy, "He didn't observe the shoe track at the house, but before he picked defendant up, observed defendant's shoes he was wearing when he went to the house. From observation the track at the window and the shoes the defendant was wearing were the same size track. There was a half sole about the instep, kind of raised up, the land was sandy and the imprint could be seen on the ground. It was the same size and mark or similar to the same mark."

Deputy Sheriff Hardy further testified that there was a tack on the shoe, where the shoe was half-soled. Did the impression in the footprint compare with the shoe of the defendant? There is no evidence in the record that it did. Deputy Sheriff Hardy specifically testified out of the jury's hearing that "* * * at no time did he try to measure the track outside with that of the defendant and defendant did not ask him to do it * * *." To put it another way, no effort was made on the part of the State to check defendant's shoe as against the footprints found in the yard.

Neither does the State's evidence show that the tracks found in the field and woods were the same as those within six or eight feet of the Hardy house. The evidence does not show that the bloodhound tracked the footprints around the house, but on the contrary, specifically shows that the tracking was started at the edge of the field across the road from the Hardy house.

A careful consideration of the evidence in the record of case on appeal, narrated above, taken in the light most favorable to the State, leads to the conclusion that the evidence is insufficient to support a verdict of guilty on the charge against the defendant as set out in the warrant. There is no direct evidence to connect defendant with the commission of the crime. The evidence offered is circumstantial, conjectural, and speculative. All that is shown may be true, and defendant be innocent of the crime. Therefore, the motions of defendant for judgment of nonsuit should have been sustained.

When the State relies upon circumstantial evidence for a conviction, "* * * 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 * * *". Stacy, C. J., in State v. Harvey, 228 N.C. 62, 44 S.E.2d 472, 474.

And as Chief Justice Merrimon stated in State v. Goodson, 107 N.C. 798, 12 S.E. 329, "The full summary of the incriminating facts, taken in the strongest view of them adverse to the prisoner, excite suspicion in the just mind that he is guilty, but such view is far from excluding the rational conclusion that some other unknown person may be the guilty party * * *."

It then comes to this, there must be legal evidence of the fact in issue and not merely such as raises a suspicion or conjecture in regard to it.

Hence the judgment from which appeal is taken must be, and it is

Reversed.

PARKER, J., dissents.