State v. Coffey

WiNBORNE, J.

Here the defendant stresses for error, in the main, and properly so, the refusal of the court below to grant his motion for judgment of nonsuit. G. S., 15-173.

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 as a matter of law that the, evidence is insufficient to support a verdict of guilty on the charge against defendant as set out in the bill of indictment. 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. Hence, the motions of defendant for judgment of nonsuit should have been sustained.

In passing upon the legal sufficiency of the evidence, it must be borne in mind that when the State relies upon circumstantial evidence for a conviction of a felony, as in this case, “the rule is that the facts established or advanced 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 S. v. Harvey, ante, 62, citing S. v. Stiwinter, 211 N. C., 278, 189 S. E., 868; S. v. Matthews, 66 N. C., 106. The evidence in its entirety tends to show no more than that defendant had the opportunity to commit the crime. And evidence of opportunity standing alone will not justify a finding that the act was done by the defendant. It is only a circumstance to be considered along with other evidence in the case. Stansbury on The North Carolina law of Evidence, Sec. 84, p. 157. S. v. Woodell, 211 N. C., 635, 191 S. E., 334. See also S. v. Jones, 215 N. C., 660, 2 S. E. (2d), 867.

The statement of defendant made to witness Cannon, and offered in evidence by the State, tends to put him at the scene of the crime, but it does more, it teiids to exculpate him. 'While the State, by offering in evidence a statement of defendant in a criminal action, is not precluded from showing that the facts were different, no such evidence tending to identify the defendant as the culprit was offered in the present case, and in this respect the State’s case is made to rest entirely on the statement of the defendant, which the State presented as worthy of belief. S. v. Todd, 222 N. C., 346, 23 S. E. (2d), 47; see also S. v. Fulcher, 184 N. C., 663, 113 S. E., 769; S. v. Cohoon, 206 N. C., 388, 174 S. E., 91; S. v. Baker, 222 N. C., 428, 23 S. E. (2d), 340; S. v. Boyd, 223 N. C., 79, 25 S. E. (2d), 456; S. v. Watts, 224 N. C., 771, 32 S. E. (2d), 348.

The statement made by defendant to Cannon, considered as worthy of belief, tends to show that others were there, and that “they” shot not only defendant, but that they shot deceased. The evidence is clear that defendant was shot, and the record is devoid of evidence that there were no gunshot wounds on the body of deceased. The evidence of the doctor is confined to wounds on the head of deceased sufficient in his opinion to cause death. Moreover, there is other evidence from which it appears, or may be inferred that others were at the scene during the twenty-four hours preceding the finding of Oliver mortally wounded. According to his adult daughter, there was a person around the house that day, but not close enough to be recognized by her. Indeed, as we read her testimony, she says that when she, with her sister, went to call their father to supper, there was “more than one person” out there, but just one man with him. Moreover, the statement of defendant, offered in evidence by the State, is that the large quantity of whiskey described in the evidence was not the property of Tom Oliver, but of one Clark. Such a large quantity of whiskey in a dry territory under the circumstances detailed, leads to the inference that it was there for sale. And the fact that there were 20 to 25 cases on the wagon Monday night, and 30 to 40 cases according to defendant’s statement to Gannon, offered in evidence by the State, and only 18 to 20 there "Wednesday morning, it may be inferred that there had been sales made of the difference, and, if sales were made, it may be inferred that they were made at that place. The fact that several cases were broken open leads to inference that sales were made in less than case lots. If there were sales, it may be inferred that the fact that whiskey was there would have become known to others in the community and along the highway, and the difference in quantity may be accounted for even by hijacking. The fact that Oliver had his gun out there indicates he thought he might have occasion to use it. And from the fact that there was an empty shell in it Wednesday morning, it may be inferred that he had used it.

Moreover, the blood spots seen on the legs of defendant’s pants and on his leather coat sleeve are entirely accordant with his innocence. The State offered proof that defendant told Cannon that he was shot in the leg, and that Gannon had defendant pull up his pants’ leg to show the wound, and that the leg had been bleeding. From this it may be inferred that defendant had previously pulled up his pants’ leg to see and had seen the wound, and had gotten blood on his left hand, and had transmitted the blood from his left hand to his right sleeve, — in a perfectly natural way.

Furthermore, the evidence offered fails to show any motive for defendant to have killed Oliver. While not necessary to be proven, motive or the absence of motive is a circumstance to be considered. Oliver and defendant were neighbors. Defendant for some time had bought milk from the Olivers, and had been to the house to pay for it, and was known to the Oliver family. Oliver had previously plowed for defendant. They were together in the afternoon, sitting in the woods, and drinking together. And, while the little girl says she heard her father crying, before he came to supper, and defendant laughing, it is strange that there is no evidence that he appeared to have been crying when he came to supper.

The contradictory statements made by defendant to the officers when and after he was arrested, may point a finger of suspicion at him, but “The circumstances” here, as stated by Devin, J., in S. v. Penry, 220 N. C., 248, 17 S. E. (2d), 4, “may have been such as to excite suspicion, but the evidence does not exclude the rational conclusion that some other person may have been the guilty party,” citing S. v. Prince, 182 N. C., 788, 108 S. E., 330; S. v. English, 214 N. C., 564, 199 S. E., 920; S. v. Shu, 218 N. C., 387, 11 S. E. (2d), 155. See also S. v. Goodson, 107 N. C., 798, 12 S. E., 329.

■The defendant’s motion for judgment of nonsuit will be sustained here, G. S., 15-173, and judgment below is

Reversed.