State v. . McLeod ( 1930 )

Stacy, 0. J.,

after stating the case: The only question presented is the sufficiency of the evidence to warrant the verdict. It is stronger on the present record than it was on the first appeal, 196 N. C., 542. And it would seem that the evidence in the instant case is fully as strong as that which was submitted to the jury in the following cases: S. v. Allen, 197 N. C., 684; S. v. McKinnon, 197 N. C., 576; S. v. Lawrence, 196 N. C., 562, 146 S. E., 395; S. v. Melton, 187 N. C., 481, 122 S. E., 17; S. v. Young, 187 N. C., 698, 122 S. E., 667; S. v. Griffith, 185 N. C., 756, 117 S. E., 586; S. v. Bynum, 175 N. C., 777, 95 S. E., 101; S. v. Matthews, 162 N. C., 542, 77 S. E., 302; S. v. Taylor, 159 N. C., 465, 74 S. E., 914; S. v. Wilcox, 132 N. C., 1120, 44 S. E., 625.

True, tbe evidence is circumstantial, but circumstantial evidence is, not only a recognized and accepted instrumentality in tbe ascertainment of truth, but in many cases quite essential to its establishment. S. v. Plyler, 153 N. C., 630, 69 S. E., 269.

Tbe evidence as to tbe identity of tbe tracks was competent. S. v. Lowry, 170 N. C., 730, 87 S. E., 62. Indeed, it may be stated as a general rule that tbe correspondence of tracks, footprints, or ground marks, found in connection with a crime, with tbe track, footprint, or shoe mark of one accused of tbe crime, or with tbe track, footprint, or shoe mark of bis horse, or with tbe track, tread, or wheel mark of bis wagon, buggy, or automobile, is admissible in evidence as tending to identify tbe accused as tbe perpetrator of tbe crime, tbe probative value of such evidence, of course, depending upon tbe attendant circumstances. S. v. Young, supra; S. v. Griffith, supra; S. v. Taylor, supra; S. v. Fain, 177 N. C., 120, 97 S. E., 716; S. v. Martin, 173 N. C., 808, 92 S. E., 597; S. v. Freeman, 146 N. C., 615, 60 S. E., 986; S. v. Hunter, 143 N. C., 607, 56 S. E., 547; S. v. Adams, 138 N. C., 688, 50 S. E., 765; S. v. Daniels, 134 N. C., 641, 46 S. E., 743; S. v. Morris, 84 N. C., 756; S. v. Reitz, 83 N. C., 634; S. v. Graham, 74 N. C., 646; Annotation: 31 A. L. R., 204.

Speaking to tbe subject in S. v. Spencer, 176 N. C., 709, 97 S. E., 155, Walker, J., delivering tbe opinion of tbe Court, said: “The testimony as to tbe fitting of tbe shoe to tracks found where tbe prisoner bad been seen was admissible, as it was a circumstance tending to show identity. . . . This is ‘real’ evidence, as called by tbe civilians, and its value as proof is greater or less, according to tbe circumstances. . . . It is some evidence tending to identify tbe prisoner as tbe perpetrator of tbe crime.”

It is sometimes difficult to distinguish between evidence sufficient to carry a case to tbe jury, and a mere scintilla, which only raises a suspicion or possibility of tbe fact in issue. S. v. Bridgers, 172 N. C., 879, 89 S. E., 804; S. v. White, 89 N. C., 462. And it may be readily conceded that this is one of tbe border-line cases. But viewing tbe evidence in its most favorable light for tbe State, tbe accepted position on a demurrer or motion to nonsuit, we are of opinion that it is of sufficient probative value to warrant its submission to tbe jury. S. v. Vaughn, 129 N. C., 502, 39 S. E., 629.

Tbe general rule is, that, if there be any evidence tending to prove tbe fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury; otherwise not, for short of this, the judge should direct a non-suit or an acquittal in a criminal prosecution. S. v. Vinson, 63 N. C., 335. But if the evidence warrant a reasonable inference of the fact in issue, it is for the jury to say whether they are convinced beyond a reasonable doubt of such fact, the fact of guilt. S. v. Blackwelder, 182 N. C., 899, 109 S. E., 644.

The function of the court when considering a motion to nonsuit, is, not to pass upon the-weight of the evidence, but to determine its sufficiency to support the verdict. S. v. King, 196 N. C., 50, 144 S. E., 518. Or as said in S. v. Carlson, 171 N. C., 818, 89 S. E., 30; “The motion to nonsuit requires that we should ascertain merely whether there is any evidence to sustain the allegations of the indictment. The same rule applies as in civil cases, and the evidence must receive the m’ost favorable construction in favor of the State for the purpose of determining its legal sufficiency to convict, leaving its weight to be passed upon by the jury. S. v. Carmon, 145 N. C., 481; S. v. Walker, 149 N. C., 527; S. v. Costner, 127 N. C., 566. The effect of Laws 1913, ch. 73, allowing a motion for nonsuit in a criminal ease, was considered in S. v. Moore, 166 N. C., 371, S. v. Gibson, 169 N. C., 318. Where the question is whether there is evidence sufficient to warrant a verdict, this Court considers only the testimony favorable to the State, if there is any, discarding that of the prisoner. S. v. Hart, 116 N. C., 976. The weight of the evidence and the credibility of the witnesses are matters for the jury to pass upon. S. v. Utley, 126 N. C., 997.”

The accepted rule, it is true, is that, in cases where the State relies upon circumstantial evidence for a conviction, the circumstances and evidence must be such as to produce in the minds of the jurors a moral certainty of the defendant’s guilt and to exclude any other reasonable hypothesis. S. v. Matthews, 66 N. C., 106; S. v. Melton, supra. Here, the incriminating evidence, taken in its entirety, if accepted and believed by the jury, would seem to be sufficient to warrant the verdict. S. v. McLeod, supra. This is as far as we are permitted to go in considering the defendant’s demurrer to the evidence or motion for judgment as in case of nonsuit under C. S., 4643.

The fact that the defendant offered no evidence, but relied upon the legal presumption of innocence and the weakness of the State’s case, is not to be taken against him. C. S., 1799. The presumption of innocence which surrounds a defendant on his plea of “not guilty,” goes with him throughout the trial and is not overcome by his failure to testify in his own behalf. He is not required to show his innocence. The burden is on the State to prove his guilt beyond a reasonable doubt. S. v. Singleton, 183 N. C., 738, 110 S. E., 846. And while his absence from the witness stand or his failure to testify, may be a circumstance not without its moral effect upon the jury, of which every lawyer appearing for a defendant is always conscious, yet this fact, as a matter of law, creates no presumption against him, and is not a proper subject for comment by the solicitor in arguing the case to the jury. S. v. Tucker, 190 N. C., 708, 130 S. E., 720.

The rulings in S. v. Montague, 195 N. C., 20, 141 S. E., 285, S. v. Rhodes, 111 N. C., 647, 15 S. E., 1038, S. v. Goodson, 107 N. C., 798, 12 S. E., 329, S. v. Brackville, 106 N. C., 701, 11 S. E., 284, and S. v. Massey, 86 N. C., 660, are distinguishable, as they were based upon facts essentially different from those appearing on the present record.

A searching scrutiny of the record leaves us with the impression that the case was properly submitted to the jury.

No error.