State v. Allred , 279 N.C. 398 ( 1971 )

183 S.E.2d 553 (1971) 279 N.C. 398

STATE of North Carolina
v.
James ALLRED.

No. 47.

Supreme Court of North Carolina.

October 13, 1971.

Atty. Gen. Robert Morgan and Asst. Attys. Gen. Wm. F. Briley and Thomas B. Wood, for the State.

Dock G. Smith, Jr., Robbins, and Pittman, Staton & Betts by William W. Staton, Sanford, for defendant appellant.

BOBBITT, Chief Justice.

Defendant assigns as error the denial of his motion under G.S. § 15-173 for judgment as of nonsuit. Decision requires consideration of the evidence in the light most favorable to the State. State v. Vincent, 278 N.C. 63, 64-65, 178 S.E.2d 608, 609 (1971), and cases cited.

The evidence is uncontradicted as to this crucial fact: The death of Tommy at Robbins Crossroads on October 19, 1969, was caused by a .25 bullet fired from a .25 automatic pistol.

There is no testimony that defendant had a .25 automatic pistol at Robbins Crossroads on October 19, 1969. Nor is there testimony that defendant fired any pistol on that occasion. The State relies upon circumstantial evidence.

To withstand defendant's motion for judgment as of nonsuit, there must be substantial evidence against the accused of every essential element that goes to make up the crime charged. Whether the State has offered such substantial evidence presents a question of law for the court. State v. Stephens, 244 N.C. 380, 383-384, 93 S.E.2d 431, 433 (1956); State v. Horton, 275 N.C. 651, 657, 170 S.E.2d 466, 471 (1969). In the present case, the crucial question is whether the State offered substantial evidence that the fatal shot was fired by defendant.

The only evidence which purports to connect defendant with a .25 pistol is the testimony of Tommy's father to the effect that defendant had told him, "about a month and a half" before Tommy's death, that he (defendant) had bought a .25 automatic pistol, "blue steel." There is no evidence such a pistol was seen in defendant's possession at any time before or after Tommy's death.

An attempt to reconcile the conflicting testimony would be futile. Each version differs sharply from the other, particularly on the issues of whether defendant had "a gun" and, if so, what he did with it.

According to Elkins: After he fired the three shots into the ground in front of the Allred boys, Donald, Corky and Tony, and after Tommy got out of his car and called for his pistol, defendant grabbed him (Elkins) and stuck a "small handgun" in his face. He did not know what color it was or anything about it. He heard no shot other than the three shots he (Elkins) fired.

According to McNeill: A "heavy-set fellow" and Tommy scuffled as they went to the back of McNeill's car, a white Oldsmobile. When the "heavy-set fellow" returned, he had "a little short gun" in his hand. McNeill could not identify any person in the courtroom as the "heavy-set fellow."

According to Deaton: Although he saw defendant grab Tommy by the hair of his head and knock him down, the only gun he saw was the gun Tommy had, "a nickel-plated, short gun, four or five inches long." He did not see defendant fire or have a gun.

According to Bibey: After Elkins had fired three shots from Tommy's gun, Tommy, Elkins and defendant came together "to retrieve" Tommy's gun. Meanwhile, a fourth shot was fired. Tommy broke away from the scuffling and leaned against a white Oldsmobile. The white Oldsmobile started away and Tommy fell. The only gun referred to by Bibey is Tommy's .22 pistol which Elkins had fired.

There is evidence which indicates hostility between Tommy and Elkins (and perhaps others) on the one hand and Donald, Corky and Tony Allred (and perhaps others) on the other hand. There was evidence from which it may be inferred that the three Allreds who were hostile to Tommy and Elkins were being transported on October 18, 1969, in defendant's red and white pickup truck, and that occupants of that truck challenged Tommy to come to Robbins Crossroads. There was evidence that Tommy was equipped with a loaded pistol and additional bullets. There was evidence that Tommy and defendant were good friends and evidence from which it may be inferred that defendant intervened to keep Tommy from inflicting injury or death by use of his .22 pistol.

There was positive evidence that at least one unidentified person, a "little bitty boy," had a pistol. Evidence as to the number of persons present and the number of shots fired at Robbins Crossroads during a period of hostility and confusion suggests that other unidentified persons had pistols.

The threatening language attributed to defendant by Deaton and Bibey related only to what defendant would do in the future.

It is well established that "(c)ontradictions and discrepancies, even in the state's evidence, are for the jury to resolve, and do not warrant nonsuit." 2 Strong, N.C. Index 2d, Criminal Law § 104. Ordinarily, such contradictions and discrepancies bear solely upon the weight to be given the testimony of a witness, a matter within the province of the jury. State v. Satterfield, 207 N.C. 118, 176 S.E. 466 (1934).

Here the question is whether the State has offered substantial evidence that the fatal shot was fired by defendant. The evidence on which the State relies to establish this crucial fact involves more than mere contradictions and discrepancies. The testimony of McNeill, Deaton and Bibey relate to three separate and distinct occasions, each involving different circumstances immediately preceding Tommy's death. The version on which the State relies is not disclosed. The court's charge does not review any contention of the State with reference to the occasion and circumstances of Tommy's death.

Although the evidence raises suspicions as to defendant's involvement and possible guilt in respect of the death of Tommy, the conclusion we reach is that the State has failed to offer substantial evidence that the bullet which caused Tommy's death was from a .25 automatic pistol fired by defendant. On account of the inadequacy of the evidence in respect of this essential element of the crime charged, we hold the circumstantial evidence insufficient for submission to the jury. For error in failing to allow defendant's motion for judgment as of nonsuit, the judgment of the court below is reversed.

Reversed.