State v. . Lawrence , 196 N.C. 562 ( 1929 )

ClaeicsoN, J.

The defendant, at the close of the State’s evidence and at the close of all the evidence, moved to dismiss the action or for judgment of nonsuit. C. S., 4643. The court below denied the motions. This constitutes defendant’s sole exceptions and assignments of error. The only question involved in this appeal: Was there sufficient evidence of defendant’s guilt to be submitted to the jury? We think so.

On motion to dismiss or judgment of nonsuit, the evidence is to be taken in the light most favorable to the, State, and it is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. “An exception to a motion to dismiss in a criminal action taken after the close of the State’s evidence, and renewed by defendant after the introduction of his own evidence does not confine the appeal to the State’s evidence alone, and a conviction will be sustained under the second exception if there is any evidence on the whole record of the defendant’s guilt.” S. v. Earp, ante, at p. 166. See S. v. Carlson, 171 N. C., 818; S. v. Sigmon, 190 N. C., 684. The evidence favorable alone to the State is considered— defendant’s evidence is discarded. S. v. Utley, 126 N. C., 997. The competency, admissibility and sufficiency of evidence is for the court to determine, the weight, effect and credibility is for the jury. S. v. Utley, supra; S. v. Blackwelder, 182 N. C., 899. The evidence in the case was circumstantial.

In S. v. Plyler, 153 N. C., at p. 636, this Court approved the charge of the court below, which was as follows: “The law says that circumstantial evidence is a recognized and accepted instrumentality in the ascertainment of truth; and it is essential and when properly understood and applied is highly satisfactory in matters of the gravest moment. The facts, relations, connections and combinations between the circumstances should be natural, clear, reasonable and satisfactory. When such evidence is relied upon to convict, it should be clear, convincing and conclusive in all its combinations and should exclude all reasonable doubt as to guilt. In passing upon such evidence, it is the duty of the jury to consider all circumstances relied upon to convict and to determine whether they have been established beyond a reasonable doubt. If not so established, the circumstances should be excluded from further consideration and have no weight in reaching a verdict. The State puts up a witness here and undertakes to prove a circumstance; you will first determine in your mind, is this circumstance established beyond a reasonable doubt? If yon say that circumstance has been established beyond a reasonable doubt, you take that into consideration in determining what verdict you will find. After considering the evidence in this way, and determining the circumstances which are established beyond a reasonable doubt, the next thing for the jury to determine is, do these circumstances exclude every other reasonable conclusion except that of guilt? If so, the evidence is sufficient to convict; otherwise, not.”

This Court, in approving the above charge, which was made by Judge Vm. E. Allen in the court below, afterwards a member of this Court, made this observation: “G-ive it our approval as a lucid statement of the law.” S. v. Brackville, 106 N. C., 701 (710); S. v. Austin, 129 N. C., 534; S. v. Flemming, 130 N. C., 688; S. v. Wilcox, 132 N. C., at p. 1137-38; S. v. Willoughby, 180 N. C., 676; S. v. Blackwelder, supra; S. v. Sigmon, supra.

In an analysis of the evidence, let us consider:

(1) The corpus delicti — the body of a crime. In the present case, there is no question as to the corpus delicti. On 24 March, 1928, some men were fishing in the Cape Fear Eiver above Avent’s Ferry Bridge. D. F. Osborne, a witness for the State, testified that about 11 o’clock at night he heard an automobile approaching the bridge from the Chatham County side. “I heard a woman’s voice screaming, ‘Don’t kill me; please don’t kill me,’ two or three times. Then for a few minutes the cries closed, and I heard the sound of a large splash or some large object fell into the river, and in a minute or two somebody struggling in the water and crying out, ‘Save me,’ ‘Lord have mercy, save me.’ ‘Help! Help!’ We got Mr. Harrington (a deputy sheriff), also his brother, and got back to the bridge around 1 o’clock, maybe 1:30. I heard the same woman’s voice, but much weaker, calling for help from down the river below the bridge. Sounded like it was three or four hundred yards down the river. Mr. Harrington and Dickens got in a boat and went down the river toward it, but it ceased before they got there.”

Mrs. Mary Yandel, a daughter of Mrs. Annie Terry, on 3 April, 1928, identified the body of her mother down the river about three miles from the bridge. “She had bruises on her face and head.”

(2) The motiv'e. “It is never indispensable to a conviction that a motive for the commission of the crime should appear. But when the State, as in this case, has to rely upon circumstantial evidence to establish the guilt of the defendant, it is not only competent, but often very important, in strengthening the evidence for the prosecution, to show a motive for committing the crime.” S. v. Green, 92 N. C., at p. 782; S. v. Stratford, 149 N. C., 483; S. v. Wilkins, 158 N. C., 603.

Fifteen letters were introduced in evidence from defendant to Mrs. Annie Terry, all signed “Rover.” Mrs. Terry had been a widow for some fifteen years before she was killed. She and defendant lived in Durham — defendant in the same apartment in which his niece and her husband lived, but was a contractor and the letters indicated was away mostly at work. A great number of the letters were in reference to Saturday night engagements. One requested her to come to Salisbury Sunday night to see him. A number of letters mentioned that he would phone her. Two of the letters mentioned that when he got there Saturday night he would phone her about 7 o’clock, and one that they would go for a ride; one, “I think my people are going to be out of town, and if they are we can make things all O. El.” One of the letters in which he wishes her to “come part of the way back with me Sunday evening and go back Monday morning,” had written below "Bum this." One letter, of 27 September, 1927, said: “I don’t see what you keep on about women for, as I have not hardly spoken to a girl since I have been here. I have tried to be good to you, and told you the truth on all occasions, and I can’t see to save my life what pleasure you get out of trying to make my life so unpleasant for me. If there was any reason for it, it would be different. But it certainly does hurt me to get such a letter with no cause.” Another letter says: “This is another case of where you let your imagination run away with you, and I am getting tired of getting such letters, when there has never been any cause for one, and it looks like to me that you could realize that some time.” A letter which seems to have been written in December, 1927, says: “Now if you let him know anything, it will mean that I will have to leave this country, for he has not got any sense about such things, and I think it will be to your benefit to think before you say too much.”

The letters indicated an illicit relationship. Mrs. Annie Terry kept these letters. Defendant, from the letters, knew he was dealing with a woman he could not trifle with. The defendant and Mrs. Annie Terry were passed middle age, and it was in evidence that defendant said to one ~W. B. Cheek, in a conversation about 1 March, that he was going to get married. It was in evidence that he told Sheriff G. W. Blair he was going to get married. “He gave me the lady’s name and address at Cooleemee; that he finished the letter about 9 p.m.; that he didn’t want the lady’s name in it; that he was engaged to her.” He wrote her the night of 24 March. The defendant’s motive was to get rid of this “old glove” and marry the Cooleemee fiancee.

(3) Identity of defendant as the one who■ committed the crime, and contradictory statements. The Lawrence home place, owned by defendant’s father, who is dead, and now owned by the heirs, is located about a mile and a half east of Avent’s Ferry Bridge, and the heirs own tbe land on tbe Chatham County side of tbe river to tbe bridge. Tbe water in tbe river where Mrs. Annie Terry was thrown in is some 18 to 20 feet deep. Defendant was raised at tbe old Lawrence home place. Tbe State contends that it is reasonable to infer that defendant in bis boyhood days bunted along tbe river bottom and fished and boated in tbe river; knew its depth and was familiar with tbe surroundings. Tbe piers and bridge were finished tbe fall previous. Defendant was at Brick Haven, some two miles away, two or three weeks before tbe murder; be was familiar with tbe bridge and surroundings.

Two fishermen were some 300 or 400 yards above tbe bridge. One of tbe fishermen, D. F. Osborne, testified that tbe car Mrs. Annie Terry was in before she was thrown into tbe river came on the' bridge from tbe Chatham County side. This was about 11 o’clock on tbe night of 24 March. “I beard a woman’s voice screaming, ‘Don’t kill me; please don’t kill me,’ two or three times. Then for a few minutes tbe cries closed, and I beard tbe sound of a large splash or some large object fell into tbe river, and in a minute or two somebody struggling in tbe water and crying out, ‘Save me,’ ‘Lord, have mercy, save me.’ ‘Help! Help!’ Heard this cry several times. Soon after tbe body struck tbe water tbe car moved on across tbe bridge to tbe Lee County side, and as it was going off tbe bridge tbe screams and cries seemed louder and more pitiful than ever, and tbe car turned around and came back up on tbe bridge. As it drove across I beard a heavy voice talking to some one in tbe water, but could not distinguish what was said. Tbe car didn’t stop, but moved across to tbe Obatbam County side, turned around and drove on tbe bridge again, and stopped, turning out tbe lights. It was a smooth-running, gear shift ear, and sounded like it was new.” Tbe fishermen went after Deputy Sheriff Henry Harrington and another, and returned in about an hour and a half. Harrington got a boat and be and another went down tbe river. A voice was beard “kind of in distress”; “after tbe voice bushed.” Harrington testified: “I saw and examined tbe road there at tbe Lee County end of tbe bridge and tbe Chatham County end of tbe bridge. I saw some automobile tracks at those places; they were still distinct and well marked — pretty plain. Tbe ground there at that time was just soft enough for a car to make a good print — make ca good plain print. I noticed it on both sides of tbe river after they said tbe car turned around on both sides. I went to both sides and looked down there and found some prints on both sides of tbe river. . . . I have seen tbe automobile that Sheriff Blair has in bis possession — a Nash coupe — green coupe. I have examined tbe tires on that car. I have not observed tbe tracks made by those tires; I just saw tbe car sitting in tbe garage and observed tbe casing. I would say that the marks on the casing of that car were the same as the marks and tracks I saw on the bridge — Firestone tread.”

There were blood spots on the third or fourth span of the bridge as big as a man’s hand, and a little bit of blood on the inside and outside of the railing. It looked like fresh blood and strands of hair in the big spot of blood.

Charlie Goodwin testified: “On the night of 24 March, 1928, my wife and I, who had been to Sanford, N. C., were returning to our home, which is about two and one-half miles or three miles from Avent’s Ferry Bridge, in Chatham County, N. C. We crossed the bridge at 11 o’clock, because it was eleven minutes past 11 when we got home, and I estimate that it took about eleven minutes to drive that distance. As we approached the bridge from the Lee County side I saw an automobile on the bridge with its lights burning, but as we got nearer the lights were turned out. It was a green, one-seaied car with wire wheels. The wheels were not the same color of the car, but I do not know what color they were. I did not see who was in the automobile. My wife was on the front seat, but I was nearer the other automobile than she. My wife told me there was a man in the car, and as we passed he turned his head toward her; that he was a stout, broad-faced man. I have seen the automobile which is in the possession of Sheriff Blair and which belongs to the defendant, and it looks like the one I saw on Avent’s Ferry Bridge that night." Mrs. Goodwin corroborated her husband: “As we passed I saw a man in the car which was on the bridge. He turned his face directly toward me. He was a stout-built man with a broad face, clean shaven. The car in which he was sitting had a glass on the sides and the glass on the side next to me was half way down. The man appeared to be a middle-aged man. I did not see anybody else in the ear. I know the defendant, and the man in the car looked like him, but I will not say that it was. My impression is that it looked like him.”

H. E. Holland testified: “About 1 o’clock a.m., on the morning of 25 March I was traveling South along highway No. 50, and after leaving Apex, N. C., I passed two automobiles going north. As I approached a curve I was traveling forty or forty-five miles an hour, and the two cars which I met were traveling from thirty to thirty-five miles an hour. The rear car pulled out as if to pass the car in front and then the driver of it put his head out of the window so that I could see him. He looked like the defendant. I do not know the defendant, and never saw him again until after this trial started, when I was told that he would be brought from the jail, and I was told to sit in the hall of the courthouse downstairs. When he came by I thought I recognized him as the man I saw in the coupe on the early morning of 25 March, 1928. The night was misty and there was a mist on my windshield. The reason I was particular and watching occupants of cars was because I bad in my pockets between $600 and $700 in cash, receipts from my filling station at Oxford. Shortly after I passed this car, and about one mile from Apex I found lying on the concrete paving of the road a woman’s blue felt hat without any brim. When I found it I sa,w it was dry — not rained on and had not been run over or touched by any automobile. On the inside was a blood stain as large as a quarter of a dollar. This hat is the one Deputy Desern and McCauley have, and is the hat now exhibited to me. I carried it home in my car that night and gave it to the sheriff Tuesday following. It is the hat Mrs. Y andel identified as worn by her mother the night she was murdered.”

G. W. Flair, sheriff of Chatham County, testified: “I was called upon to investigate the affair at Avent’s Ferry Bridge about 10 o’clock Sunday, 25 March. ... I examined the roadway at the end of the bridge on the Lee County side. I examined the trades of the automobile dosely; the 'print of the tire was distinct and dear. I lenow the automobile of W. H. Lawrence, and ha\ae examined the tread of his car, and the same hind of tread made the track.” As to his conversation with the defendant, he testified: “I was sheriff and asked him to give us information about Mrs. Terry. At first he denied knowing her. He said that he would be glad to, but that he only knew Mrs. Terry slightly; that he knew of no one who had any enmity towards Mrs. Terry. He said that he had never been with her; that she had never been in his automobile; that he was sure of that; that he only slightly knew her; he said he didn’t know how she made a living; that he had never loaned her any money; that he never thought of such a thing. I asked him if he ever sent Mrs. Terry $100 to Atlanta; he hung his head and admitted that he did. Then he said he had once carried Mrs. Terry and Mrs. Andrews in his automobile to Winston-Salem. Then he said one time he brought her from Greensboro to Durham; and he said the last time he spoke to Mrs. Terry was when he carried her to Winston-Salem. . . . He said ‘Jesse Cannady and myself sat on the pipe railing at the Trust Building from 8 to 8 :30.’ He said that he then went to his office and wrote his girl a letter; he gave me the lady’s name eftnd address at Oooleemee; that he finished the letter about 9 p.m.; that he didn’t want the lady’s name in it; that he was engaged to her; that he mailed the letter; that he saw Jesse Cannady again and spoke to him at the Sport Shop; that he then got his automobile and went to Grigg’s Filling Station, where he got some oil and had the alcohol drained out of his radiator; that he went home at 9 :S0 p.m., and went to bed. . . . Said that he crossed the bridge at Avent’s Ferry the last time three or four weeks before that time, that time being 11 April; that Mrs. Terry had said on the Winston trip that she liked him, but that he turned it off because he would not marry a woman with a bouse full of children; that be spent tbe night, when be took Mrs. Terry and Mrs. Andrews to Winston-Salem, at tbe Bobert E. Lee Hotel; that Marvin Teer introduced him to Mrs. Terry eight years ago; that be bad been drinking tbe time be went with Mrs. Terry to Chapel Hill; that be didn’t know bis dry-cleaner’s name. Mr; Lawrence gave us bis automobile key and told .us where bis automobile was located, and Mr. Hall and Mr. King went and got bis car. I looked in tbe car. I examined, the trades- — the trades of the car — atad they were exactly the same as those I saw at the bridge. We found blood spots or stains in the carj it is a Nash coupe. I found three or four blood spots in it; that evening we found eight or nine on the box bade of seat on the right-hand side, just bade of a person’s nede sitting in the car; the steering wheel is on the left side. On tbe right-hand rear fender there were stains which appeared to be blood stains. In front of where a person sits on tbe right side there appears to be a blood spot. I would not say positively that any of the stains were blood stains. After examining tbe car I asked Lawrence if be bad done anything that would cause blood to be in tbe car; at first be said No’; then be said a man did get in bis car with a package of meat some time back. I asked him who tbe man was and be studied a minute and said be didn’t know bis name; then be said about two weeks before be cut bis finger in bis car, and it bled freely while sitting in tbe car; be held up bis thumb and forefinger— I think on bis right band; I didn’t see any scar; be said be cut bis finger in closing bis knife. He was arrested afterwards. . . . Mr. Lawrence spoke to me about owning land near tbe bridge. He said be bad crossed tbe old Ferry flat. Mr. Desern aslced him what way he went to the Ferry, and he said he usually went down No. 10 and up No-. 50j that way leads by Gary and Apex. Tbe Brick Haven road was built some time ago. Tbe distance from Durham to Avent’s Eerry Bridge by Pittsboro is 48 to 48% miles; by Boute No. 10 and Merry Oaks by No. 50 it is 47 or 48 miles. . . . Mr. Lawrence said two or three times, ‘Sheriff, I think when you trace it up you will find some one else beside me.’ There was no objection by Mr. Lawrence as to giving up bis key to bis automobile.”

Tbe undertaker, Warlick, testified: “I took charge of tbe body of Mrs. Annie Terry. I made a thorough examination of it and found several wounds and bruises. There was a hole in the side of the head behind the right ear about the size of a quarter of a dollar, a swollen bruised place behind her left ear, with tbe scalp cut, her lips and mouth were swollen and bruised as if by blows, across her forehead were several bruises about the size of a lead pencil running diagonally, as if struck with some instrument, and on her upper arms bruises, and underneath her forearms •bruises, aibout the size of your finger, as if inflicted while her arms were raised upwards in front of her face above her head, and a large bruise on ber tbigb. ... I got tbe body at tbe river about three miles below Avent’s Ferry Bridge. It was elotbed. Sbe did not bave on any coat or hat, and no pin or jewelry of any kind except a small ring, was on ber person.”

G. A. Allison testified: “I am telegraph operator and railway station agent at Cooleemee, N. C., and was living there in 1927, and I knew tbe defendant who spent some time there. Tbe defendant’s general character was good while be was at Cooleemee.” This witness identified a telegram to tbe defendant from Atlanta, Ga., dated 17 June, 1927, signed, “Annie,” asking tbe defendant to telegraph ber $200 to No. 1268 DeKalb Avenue, Atlanta, Ga.; a telegram from tbe defendant to Mrs. Annie Terry, No. 1268 DeKalb Avenue, Atlanta, Ga., reading as follows : “Impossible to send two, wire if one will do any good. Herbert.” And a telegram to tbe defendant from Atlanta, Ga., signed “Annie,” dated 28 June, 1927, reading as follows: “One will do. Annie.”

J. E. Johnson testified: “On 29 June, 1927, I was in charge of tbe "Western Union Telegraph office in Salisbury, N. O., and my records show that on that date $100 was telegraphed to Mrs. Annie Terry, No. 1268 DeKalb Ave., Atlanta, Ga., by a person signing bis name ‘W. H. Lawrence.’ ”

Geo. H. Brooks, coroner of Chatham County, testified: “Pursuant to tbe order of Judge Nunn, took possession of tbe automobile of tbe defendant, W". H. Lawrence. It was a Nash, with wire wheels and Firestone Balloon tires. It has one seat inside and a rumble seat in tbe rear. It was a sport made coupe, six cylinder car, practically new. I examined the automobile thoroughly and found a number of spots on the bach rest of the seat inside and on a ledge at the top of the back rest which I think looked like blood. There were also some spots near the' edge of tbe seat on tbe right-band side and some on tbe dashboard which looked like blood. There were other spots on tbe outside of tbe car, namely, on tbe hood, tbe fenders, tbe door and one spot on tbe back rest of tbe rumble seat which looked like blood.”

"W. E. McCauley, deputy sheriff of Lee County, testified: “I went to Avent’s Ferry Bridge and examined imprints of automobile tires at both ends of the bridge which were pointed out to me. I bave since examined tbe tires of tbe automobile belonging to tbe defendant and the imprints which I saw at both ends of the bridge were similar to the tread of those tires. I also saw some spots inside of tbe defendant’s automobile which looked like they might have been made by blood. There were a few small spots, tbe largest one was about tbe size of tbe nail of my little finger and tbe others were similar. I am satisfied they were blood.”

C. T. Desern testified: “I think it rained a little something towards 11 or midnight; something like that; possibly rained just a little. I would suppose it is between twenty and twenty-five miles from Apex to Avent Ferry Bridge by Route 50. . . . This document is out of the register of the Robert E. Lee Hotel at Winston-Salem, under the date of the eighth month, eighth day, 1927 — 8 August, 1927. I got that out of the original record. I have seen W. H. Lawrence’s handwriting, and would know it if I were to see it again. Those three names — W. H. Lawrence, Mrs. C. Andrews, Mrs. W. M. Terry — are in the handwriting of W. H. Lawrence. . . . While» talking to Sheriff Blair the defendant was nervous, and his lips trembling, his voice breaking, and apparently frightened.”

L. L. Ford: Identified the register sheet of his hotel (Empire Hotel of Salisbury, N. C.), of Sunday, 4 December, 1927, upon which appeared the name “W. H. Lawrence, Burlington, N. C.,” the writing being identical to that of defendant, and just above the defendant’s name there appeared the name “Mrs. Raeford Terry (same as Mrs. Annie Terry), Durham, N. C.” . . , “The photograph of Mrs. Annie Terry looks like the lady who came in the Empire Hotel with the defendant. They both left the next day.”

Defendant’s automobile was brought by Coroner Geo. H. Brooks from the home of the sheriff of Chatham County to the courthouse green, where it was viewed by the jury, at which time the coroner pointed out to the jury the spots, or some of the spots, which he had testified to previously.

During the trial defendant attempted to commit suicide. John Burns, deputy sheriff of Chatham County, testified: “I had the defendant, W. H. Lawrence. I put him in the cell Friday night, 18 May, right about sundown, the best I remember. He seemed all right, in good shape when I put him in the cell. The next time I saw him after I put him in there was about 6:25 the next morning. The cell door was locked and I had the key. There is no other key to it; no one had access to the cell during the night. When I saw him the next morning at 6 :25 his throat was cut. I couldn’t say how bad he was cut; he was cut right much; he bled right much. There was a cut across his wrist on the left hand. When I saw him he was lying on his back on the bed in the cell. I went in the cell to turn out a prisoner that works here on the road that has been tried and sentenced on the road for six months in this county now. I went in as quietly as I could. Friday, the morning before, the door slammed and woke Mr. Lawrence up, and I told him that I would try to be quiet next morning and not wake him up, and I went in as quiet as I could — so as not to disturb him — and while I was unlocking the door where this prisoner was in the cell next to his, he called me and said, ‘Mr. Burns, I wish you would give me your gun,’ or ‘let me have your gun.’ I said, ‘Mr. Lawrence, you don’t need no gun.’ I thought he was just kidding me. He said he wanted to finish the job. I said, ‘Mr. Lawrence, what in the world,’ and he said, ‘Mr. Burns, they are framing up on me, and it is more than I can stand.’ There was a little safety razor blade in his left hand, in his fingers. ... I would estimate that he had bled half a gallon. . . . Mr. Lawrence gaye me a letter; he told me there was a note there on the bed. My hands were bloody and some one else put it in my pocket, and I think I gaye it to Harry Norwood. I think this is the note.” The witness read the note, which is as follows: “To all my friends: Since they have started lying so much, it is impossible for me to stand it any longer. So please pardon me for this act I am about to commit. You all know I am not guilty, and I am being lied on by some, and the worst ones for that are still to come, so this is the shortest way out. Good-bye to you all. W. H. Lawrence.” Witness continued: “The wound was on the right side of his neck. I could estimate it to be about four or five inches long. It looked to be. Mr. Lawrence told me that they were framing up on him, and that he could not stand it. He told me also that he was not guilty.”

Jack Womble testified: “I lived at Merry Oaks, N. 0., on 24 March, 1928, and was working at a filling station there; between 10 and 11 o’clock that night a green coupe automobile came to the filling station occupied by a man and a woman; it was a green coupe with wire wheels. The man called for two soft drinks, which I went back to the filling station and got and took them to the automobile. The man in the car had a broad face, broad shoulders, and was clean shaven. It was about 10:30 o’clock when the ear drove up to the filling station. When it left it went south for a few hundred yards, turned to the left, crossed the railroad and turned into the Avmtfs Ferry road, passing'out of my sight. Only one other car, a Ford, crossed the railroad going that way on that night. I told Mr. Desern, deputy sheriff, about it. The woman in the car was a settled aged woman. There was no one at the filling station but me. Neither one of the occupants of the car got out. It started off after staying there for three or four minutes. I never saw the defendant until I saw him here at the courthouse. I thinlc the man in the automobile loolced like him, but I will not swear that it was him.”

Q. “Now I want to ask you, this man is being tried for his life, if you will undertake to swear definitely and positively that the man that you saw in that automobile was Mr. W. H. Lawrence?” A. “No, sir, I would not swear so, but I think it was.”

Dr. 0. A. Shore: “I am a physician and I am director of the State Laboratory. I have had experience with the microscopic examination of blood. I have been in my present position for twenty years. I see blood almost every day under the microscope and make microscopic examination of the blood cells almost every day. I recall a green Nash coupe automobile which was brought to my laboratory by Mr. Brooks, the coroner of this county. I made a microscopic examination of the stains or spots on the inside of that car and upon the seat. I thinh some of those spots were blood spots.”

The movements of Mrs. Annie T&i’ry, Saturday, 24- March, 1928. In the evening she took supper at her own home with a married daughter, Mrs. Mary Yandel, and her two sons, Robert and Edgar Terry. The telephone rang and the deceased answered it, but no one heard the conversation. This occurred a little before 7 p.m. After supper, and after Mrs. Yandel had left, the deceased changed her clothes and asked her son, Robert Terry, to take her in his automobile to the bus station in Durham. They left the house about 7:20 p.m. When, however, they had reached Kronheiner’s store on Main Street, which is about four and one-half blocks from the bus station, at her request her son stopped the ear and let her out there. None of her children saw her again until after her dead body was found, on 3 April. Mrs. Annie Terry, the deceased, appeared that night between 7:30 and 8 o’clock at the store of Oren Holmes and remained not more than two minutes. This store is about two blocks south of the Union Bus Station. The same night, soon after Mrs. Terry was seen at the store of Holmes, Robert Dixon saw some one in an automobile, among a number of other automobiles, at the corner of Holloway and Dillard streets, whom he recognized as the defendant. Some one was with him, but he could not see who it was, nor whether it was a man or woman. All of her children testified that Mrs. Terry was wearing a dark blue felt hat which had no brim, and one of them testified that she also had on a coat with fur collar and cuffs. No one who knew her personally saw her afterwards until her dead body was taken from the river on 3 April.

The North Carolina Highway System map was put in evidence to indicate the routes.

The defendant introduced numerous witnesses as to his general reputation being good. That there were no blood spots on the ear. Relied on an alibi and contradiction of some of the State’s witnesses. Defendant cites S. v. Brackville, 106 N. C., 701; S. v. Goodson, 107 N. C., 798; S. v. Gragg, 122 N. C., 1082; S. v. Montague, 195 N. C., 20, and cases from other jurisdictions. See S. v. Prince, 182 N. C., 788.

The defendant contends that the State has utterly failed to make out a case against defendant. That “this Court has decided in a number of the cases hereinbefore cited that the State must offer legal evidence sufficient to establish the guilt of the accused. We believe that the weakest of the cases cited contains more evidence in favor of the State than the case at bar. Conversely, the case at bar is weaker than any o£ the cases which this Court has held were too weak to be submitted to a jury.”

(1) As to the identification of the automobile trades at the bridge being like those made by defendant’s car, S. v. Brockville, supra, is cited by defendant. It is said in that case, at p. 709: “That his tracks were seen by one witness as if he were going from the place where the body of the deceased was found towards the house from which he was taken, but this evidence was not definite or satisfactory. So far as appears, the tracks were not scrutinized; they were not measured; the prisoner’s feet were not measured or fitted to the tracks, nor did it appear that his feet were at all peculiar in any respect, nor did the witness say how she knew the tracks were his. . . . (p. 710). Leaving out the evidence as to the tracks, the leading facts, whether taken severally or collectively, and in their combined force, were not necessarily inconsistent with his innocence. As we have seen, the evidence as to the tracks was very unsatisfactory.”

Standing alone, this evidence was slight. It was in evidence that defendant had a new green Nash coupe. It had on it Firestone tires— treads on the casing; these made marks or tracks. The car on the bridge from which Mrs. Annie Terry was thrown into the river, stopped, crossed the bridge and turned around and crossed to the Chatham County side, and then-went back on the bridge. The same night, and a few hours afterwards, the tracks were examined. The ground was just soft enough for a car to make, good plain prints, and they were described by the witness, “They were still distinct and well marked — pretty plain.” It was in evidence that a car was on the bridge at 11 o’clock at night with lights burning, and as the witness Goodwin got nearer the lights were turned off. The man was in “a green one-seated car with wire wheels.” The witness saw the car owned by defendant. “It looks like the one I saw on Avenf s Ferry Bridge that night.” His wife, who was with him, testified that she knew defendant “and the man in the car looked like him.” Taking all these facts, it was a circumstance with other circumstances that were relevant to the inquiry. See S. v. Matthews, 162 N. C., 542; S. v. Trull, 169 N. C., 363; S. v. Young, 187 N. C., 698.

(2) As to opinion of Mood spots on the car, Dr. C. A. Shore testified: “I think some of those spots were blood spots.” W. R. McCauley, “I am satisfied they were blood.” And other evidence to the like effect as to their opinion that it was blood on the car were circumstances and were relevant to the inquiry.

(3) As to the identity of defendant: (a) “I know the defendant, and the man in the car looked like him, but I will not say that it was. My impression is that it looked like him.” (b) “He looked like the defendant. . . . When he came by I thought I recognized him as the man I saw in tbe coupe on tbe early morning of 25 March, 1928.” ■ (c) “I tbink tbe man in tbe automobile looked like bim, but I will not swear it was bim. No, sir, I will not swear so, but I tbink it was.”

Tbis kind of evidence bas frequently been beld to be admissible in this jurisdiction. In S. v. Costner, 127 N. C., at p. 572, it is said: “She was asked by tbe Solicitor, What is your opinion, from wbat you saw of tbe man that nigbt, as to wbo it was?’ Sbe answered, ‘Tbe figure in tbe room that nigbt compared more favorably witb Wade Costner tban anyone else I could tbink of in tba.t community.’ ”

In S. v. Carmon, 145 N. C., at p. 484, it is said: “Tbe witness George Kluttz testified that be knew tbe defendant and bad known bim for two months; that, while it was dark when tbe assault was committed, be ‘got a glimpse’ of bim just after tbe pistol was fired, a second only intervening, and that be ‘thought’ it was and ‘took it to be’ tbe defendant, tbe latter being only fifteen feet from bim at tbe time. His father stated that, while bis vision was obscured by tbe fact that be was looking from a lighted room, bis store, into tbe darkness without, and it was almost impossible for that reason to recognize a person, yet be ‘threw bis eyes around’ immediately after tbe firing of tbe pistol and saw a person whom be ‘took to be’ tbe defendant, and be also saw a pistol in bis right band, or something that looked like one. He further stated that tbe defendant ran in tbe direction of tbe Climax Hotel, though it .appeared that tbis was not in tbe direction of bis home. It seems to us that tbis testimony is as strong as that which, in S. v. Lytle, 117 N. C., 803, was permitted to go to tbe jury, and upon which their verdict and tbe judgment were sustained by tbis Court. Indeed, we are of tbe opinion that tbe testimony in tbis case is much stronger tban tbe testimony of tbe witness John Dawkins was in S. v. Lytle. He testified in that case as follows: ‘I recollect tbe nigbt when tbe barn was burnt. I met a man whom I took to be Lytle in tbe road, near my bouse. He was a low, chunky man. It was too dark to see whether be was white or black. He bad bis back to me; bad on a dark sack coat. I have known Lytle ten years; have seen bim often. Had I spoken to bim I would have called bim Lytle.’ ”

In S. v. Lane, 166 N. C., 336, it is said: “Tbe testimony of E. Hill-man that tbe man be saw coming towards Joab Lane’s house looked like tbe defendant, was competent in connection witb tbe other evidence of identity.”

In S. v. Walton, 186 N. C., at p. 489, it is said: “Tbe exception that tbe court permitted tbe witness Jones to testify that be took tbe man wbo beld bim up at tbe crossroads that nigbt to be Len "Walton was properly overruled. S. v. Spencer, 176 N. C., 713; S. v. Lytle, 117 N. C., 803, and S. v. Thorp, 72 N. C., 186.”

(4) The attempt to commit suicide-. This evidence is in the record, and it has been held that such a circumstance is competent to be considered by the jury, when determining the guilt of- defendant in connection with other circumstances.

In S. v. Dickerson, 189 N. C., at p. 331, it is said: “In S. v. Case, 93 N. C., 546, it is said: ‘In criminal cases every circumstance that is calculated to throw light upon the supposed crime is admissible. S. v. Swink, 19 N. C., 9. The fact that immediately after the discovery of the crime the person charged with its commission flies (fled), is admitted as a circumstance to be considered by the jury. S. v. Nat, 51 N. C., 114. So it is held that if the prisoner, when arrested, attempts to make his escape, or attempts to bribe the officer to let him escape, the evidence is admissible. 11 Ga., 123; Fanning v. State of Missouri, 14 Mo., 386; Dean v. Commonwealth, 4 Grattan, 541; 26 Ia., 275.’ In S. v. Tate, 161 N. C., 286, it is held: ‘But such flight or concealment of the accused, while it raised no presumption of law as to guilt, is competent evidence to be considered by the jury in connection with the other circumstances. 12 Cyc., 395; 21 Cyc., 941.’” S. v. Hairston, 182 N. C., 851; S. v. Stewart, 189 N. C., at p. 347; S. v. Adams, 191 N. C., at p. 527; S. v. Mull, ante, 351; Commonwealth v. Madeiros, 255 Mass., 304, 47 A. L. R., 962.

It is said in S. v. Steele, 190 N. C., at p. 511, speaking of flight: “The basis of this rule is that a guilty conscience influences conduct. From time immemorial it has been thus accepted. ‘The wicked flee when no man pursueth; but the righteous are bold as a lion.’ 28 Prov., 1. ‘Thus conscience doth make cowards of us all.’ Hamlet, Act III, scene 1. ‘Guilty consciences always make people cowards.’- — -The Prince and his Minister, Pilpay, ch. Ill, Fable III.”

Suicide is in the nature of flight. In S. v. Blamcett, 24 New Mexico, 433, 174 Pac., at p. 209, the following observations on the subject are made: “It is next contended that the court erred in admitting in evidence and in instructing the jury that it might consider proof of the attempt of the appellant to commit suicide. It is urged in this connection that proof of the attempted suicide is not analogous to flight and does not involve any suggestion of guilt. It is urged that in the case of S. v. Coudotte, 7 N. D., 109, 72 N. W., 913, the Court held that there is no presumption of guilt arising from the fact that the person charged with crime, and while in confinement and before trial, attempts to commit suicide. It is suggested that the case of S. v. Jaggers, 71 N. J. Law, 281, 58 Atl., 1014, 108 Am. St. Rep., 746, while holding to the contrary, it is not supported by reason or authority. We, however, do not agree with appellant’s contention in this respect. Other than the cases cited by appellant, our attention is directed by the State to the case of People v. Duncan, 261 Ill., 339, at 353, 103 N. E., 1043, 1049. The Supreme Court of Illinois in that case held that: 'The fact that defendant attempted to commit suicide was a circumstance which was properly to be taken into consideration by the jury in connection with all the other facts and circumstances proven.’ ”

In the present case defendant was sui juris — a man of mental and physical vigor, perfectly normal. He had been leading a double life, his trial was on, he could not stand the humiliation and disgrace, and in his endeavor to escape the punishment, he anticipated from the evidence adduced, he attempted to kill himself. This is somewhat akin to flight.

The automobile was viewed by the jury, and some of the spots pointed out to them. The power of the court below to order a view by the jury is set forth in S. v. Stewart, 189 N. C., p. 345. In the present case there seems to have been no objection.

It is sometimes difficult to determine what is and is not sufficient evidence to be submitted to a jury. Under the Constitution of this State, this Court has jurisdiction upon appeal to review any decision of the courts below “upon any matter of law or legal inference.” It is the province of the jury to determine the facts and that of the court to state the law. The right of trial by jury has ever been closely allied with the cause of human liberty. “The right of trial by jury,” says Mr. Justice Story, “is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment on it has been watched with great jealousy. The right to such a trial is incorporated into and secured by the constitution of every State in the Union. In Magna Carta the basic principle of that right is more than once insisted on, as the great bulwark of English liberties, but especially by the provision that 'no freeman shall be hurt, in either his person or property, unless by lawful judgment of his peers or equals, or by the law of the land.’ ”

The jury has convicted the defendant of murder in the second degree. If this verdict is premised on sufficient evidence it must stand under the law. This Court cannot erect a despotism of five men. If, on the other hand, it is premised on conjecture, suspicion or mere scintilla, it is the duty of this Court to so declare. S. v. Swinson, ante, 100. We are constrained to decide as a matter of law that the evidence was sufficient to be submitted to a jury and the probative force was for them.

The lirilcs in the chain of circumstantial evidence. The defendant and Annie Terry, from the evidence, had for years been engaged in secret illicit relations. They were settled-aged man and woman. They seemed to get together generally on Saturday nights, both living in Durham, and he, being a contractor, coming home for the week-ends. She had carefully kept some fifteen of his letters,'he signing all of them “Rover.” Sbe even kept tbe one be bad written on, “Burn tbis.” It seems tbat sbe bad upbraided bim about women. He warned ber in one letter not to say too mueb, or be would bave to leave tbis country. He would pbone ber and they would go for a ride, or other arrangements be made for their meetings. At one time sbe went to Salisbury to meet bim. He sent ber money to Atlanta. Tbe telegrams between them were signed “Herbert” and “Annie.” Tbe time bad come when tbe illicit relationship bad to cease. He became engaged to marry another woman. Annie Terry was thrown in tbe river at Avent’s Ferry Bridge at about 11 o’clock on 24 March, 1928. Tbis bridge was some forty-eight miles from Durham, and defendant usually went to tbe ferry down No. 10 and up No. 50, by tbe way through Cary and Apex. At 9 o’clock tbat night be stated tbat be went to bis office and wrote bis fiancee at Cooleemee a letter and mailed it. He said be went borne at 9 :30 and went to bed. Tbat evening Annie Terry was at her home-, took supper with her children. Tbe telephone rang; sbe answered it. Tbis was about 7 o’clock. Sbe changed ber clothes and asked ber son to take her to tbe bus station, but she got out of bis car some four and a half blocks from tbe bus station. Tbe last trace of ber in Durham, from tbe evidence, was between 7:30 and 8 o’clock at Oren Holmes’ store about two blocks south of the Union Bus Station. Sbe was wearing a dark blue felt bat which bad no brim. Tbe evidence would indicate tbat after defendant wrote tbe letter to bis fiancee, by telephone or otherwise they got together as usual on Saturday nights. Defendant bad a new green Nash coupe, Firestone tread on tbe tires. He was raised a,t the old homestead, bis father now dead, and be and tbe other children inherited tbe land tbat ran to tbe river and Avent’s Ferry Bridge, where tbe murder took place. He knew the river, the depth of the water at the bridge 18 to 20 feet. His motive was to get rid of ber so be could marry bis fiancee, to whom be bad written tbat night. He and she got in bis car. He could easily drive to tbe Avent Ferry Bridge in an hour or so. He drives from Durham down No. 10 to Cary, then on No. 50 to Apex, and then to Merry Oaks. Jack Womble was working on tbe night of 24 March at a filling station at Merry Oaks. About 10:30 o’clock that night a green coupe with wire wheels, occupied by a man and a woman, drove up. Tbe man called for soft drinks, which Womble got and 'took to the car. Tbe man in tbe car bad a broad face and shoulders and was clean shaven. The defendant answers tbis description. Tbe woman in tbe ear was a settled-aged woman. Tbe car did not continue down No. 50 towards Sanford, but be watched it go south for a few hundred yards, turn to the left, cross tbe railroad and turn into tbe Avent Ferry Bridge road. Womble testified, “I think tbe man in tbe automobile looked like bim (defendant), but I will not swear tbat it was bim. I would not swear so, but I think it was.” The death car reaches Avent Ferry Bridge. The fishermen hear the pitiful screams and cries of a woman, and a- sound as if some one had been thrown into the water. The car that came upon the bridge was a smooth-running gear-shift car, and sounded like it was new. The car, after the woman had been thrown in the river, moved across the bridge to the Lee County side, turned around and came baek, crossed the bridge and then came upon the bridge again, stopped and the lights were turned out. A heavy voice was heard talking to some one in the water. Some hour and a half after, the rescuing party heard a voice down the river in distress, and the voice soon hushed forever. The body of Annie Terry was found on 3 April down the river about three miles. There were blood spots on the third or fourth span of the bridge as big as a man’s hand, and hair and blood on the inside and outside of railing. The undertaker testified her lips and mouth were swollen and bruised as if by blows across her forehead, and other bruises as if struck by some instrument, and bruises inflicted while her arms were raised upward in front of her face above her head. When the body was found she did not have on a hat. Defendant’s. car was examined thoroughly and a number of spots which looked like blood were found on the back rest of the seat inside and on a ledge at the top of the back seat. This was on the side the woman sat. There were other spots on the outside of the car. Dr. Shore, who made a microscopic examination of the spots, testified, “I think some of those spots were blood spots.” At 11 o’clock Charlie G-oodwin and his wife came by, and as he approached Avent Ferry Bridge from the Lee County side he saw an automobile on the bridge with its lights burning, as they got nearer the lights were turned out. He testified that it was a green, one-seated car, with wire wheels. The man in the car was stou't, broad-faced, the description corresponding to defendant and his car. The automobile of defendant looked like the one he saw on the bridge that night. His wife testified he turned his face directly towards her; he was a stout-built man with a broad face, clean shaven. “I know the defendant, and the man in the car looked like him, but I will not say that it was; my impression is that it looked like him.” The man on Avent’s Ferry Bridge starts back towards Durham via Apex and Cary. H. E. Holland was watching the road closely, as he had a large sum of money in his pockets, and was traveling south along No. 50. After leaving Apex he passed two automobiles going north, in front a sedan, behind a coupe. The coupe passed the sedan and the driver put his head out of the window; he could see him. “He looked like defendant.” At the time of the trial he testified: “When he came by I thought I recognized him as the man I saw in the coupe on the early morning of 25 March, 1928.” Shortly after Holland passed the coupe, about a mile from Apex, he found lying on the concrete paving of the road a woman’s blue felt hat without any brim. On the inside was a blood stain as large as a quarter of a. dollar. The hat was identified as that of Annie Terry, worn by her on the night she was killed. The man who killed her, on the return trip, no doubt, after striking her in the head the hat was knocked off in the car, and when he found it on his return, he threw it out on the road. Many witnesses testified that defendant’s car had such tread tires, that make a track similar to those found going on the bridge, turning around and coming back on the bridge, also the similarity of the death car on the bridge with defendant’s car. These tracks were distinct and clear, and the tracks were examined closely, the ground at the time was'soft enough for a ear to make a good print. When confronted, the defendant denied knowing Annie Terry, then admitted knowing her slightly' and made other denials, which were contradicted. To cap the climax, when the w.eb was being wrapped around him during the trial, he attempted to commit murder and kill himself. The jury that tried him viewed the spots on his car. We think the evidence was sufficient to be submitted to the jury. Its probative force was for them. In the record we find

No error.