State v. Smith

73 S.E.2d 901 (1953) 236 N.C. 748

STATE
v.
SMITH et al.

No. 651.

Supreme Court of North Carolina.

January 6, 1953.

Atty. Gen. Harry McMullan, Asst. Atty. Gen. T. W. Bruton, and Charles G. Powell, Jr., Member of Staff, Raleigh, for the State.

H. L. Koontz, Greensboro, for the defendant, Marvin Frank Smith, appellant.

ERVIN, Justice.

The chief question presented by the assignments of error is whether the trial judge erred in overruling the motion of the appellant for a compulsory nonsuit.

There was no direct evidence at the trial tending to connect Smith with the crimes alleged. The State undertook to establish complicity on his part by these circumstances:

Wattlington, a participant in the crimes alleged, was accustomed to put paper bags containing lottery tickets behind a road sign and a sapling standing beside a public road in a rural district. At an early hour of the morning, Smith stopped his automobile at a point on the public road "about even with the sign and sapling," alighted, "walked directly in front of the sign and sapling," and started bending over, or leaning over, or reaching over towards the ground there. Smith was thereupon placed under arrest.

Circumstantial evidence will support a conviction when, and only when, the circumstances are sufficient to exclude every reasonable hypothesis except that of guilt. To meet this requirement, the circumstantial facts must be consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent. State v. Needham, 235 N.C. 555, 71 S.E.2d 29; State v. Jarrell, 233 N.C. 741, 65 S.E.2d 304; State v. Webb, 233 N.C. 382, 64 S.E.2d 268; State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349; State v. Minton, 228 N.C. 518, 46 S.E.2d 296; State v. Coffey, 228 N.C. 119, 44 S.E.2d 886; State v. Harvey, 228 N.C. 62, 44 S.E.2d 472; State v. Graham, 224 N.C. 347, 30 S.E.2d 151; State v. Penry, 220 N.C. 248, 17 S.E.2d 4; State v. Jones, 215 N.C. 660, 2 S.E.2d 867; State v. English, 214 N.C. 564, 199 S.E. 920; State v. Madden, 212 N.C. 56, 192 S.E. 859; State v. Prince, 182 N.C. 788, 108 S.E. 330; State v. Plyler, 153 N.C. 630, 69 S.E. 269; State v. West, 152 N. C. 832, 68 S.E. 14; State v. Wilcox, 132 N.C. 1120, 44 S.E. 625; State v. Austin, 129 N.C. 534, 40 S.E. 4; 23 C.J.S., Criminal Law, § 907.

The circumstantial facts put in evidence by the State are calculated to create a strong suspicion that the appellant visited the spot marked by the road sign and the sapling for the illegal purpose of securing lottery tickets. Yet they can certainly be reconciled with the theory that the appellant stopped his automobile on a public road and alighted from it to perform some innocent mission, and that his ensuing proximity to the road sign and the sapling was wholly fortuitous in character. This being true, the circumstances are legally insufficient to exclude every reasonable hypothesis except that of the appellant's guilt, and the prosecution ought to have been dismissed as to him upon an involuntary nonsuit.

The circumstantial facts in the instant action bear a striking similarity to those in State v. Wilkerson, 72 N.C. 376, where the defendant was indicted for stealing a hog. It was shown there that a hog belonging to the prosecutor had been killed and hidden under leaves in the corner of a fence, and that the defendant went to the place of concealment at night, looked around carefully as if looking for some one, stooped over the hog as if to take it up, and fled the scene on being hailed by the prosecutor, who had learned of the slaying and concealment of his hog and had stationed himself on watch nearby.

The court held these circumstances insufficient to establish the guilt of the defendant.

For the reasons given, we vacate the conviction and sentence of the appellant, and sustain his motion for a compulsory nonsuit. Under the statute, this ruling is tantamount to a verdict of not guilty. G.S. § 15-173.

This ruling may permit a violator of the law to go unwhipped of justice. If so, it does no violence to the basic concept of criminal justice epitomized in Sir William Blackstone's terse assertion that "It is better that ten guilty persons escape than that one innocent suffer." State v. Hendrick, supra [232 N.C. 447, 61 S.E.2d 356].

Reversed.