State v. Virgil, 447
| Decision Date | 25 November 1964 |
| Docket Number | No. 447,447 |
| Citation | 138 S.E.2d 777,263 N.C. 73 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. Richard VIRGIL. |
George M. Anderson, Raleigh, for appellant.
T. W. Bruton, Atty. Gen., Harry W. McGalliard, Deputy Atty. Gen., Raleigh, for appellee.
The State's evidence, in brief summary, tends to show:
On February 9, 1963, about 3:00 a. m., T. S. Mattews, part owner, was sleeping inside the premises of Matthews & Gentry Service Station and Grocery. He was awakened by a tapping noise at one of the outer doors. Thereafter, one Oliver Evans broke a glass panel in an overhead door to the garage portion of the premises, entered where the glass panel had been broken and when, passing through a swinging door, entered the portion of the premises in which Matthews had been sleeping. Matthews' dog barked. Evans fired his shotgun and injured Matthews. Matthews fired his shotgun and injured Evans. Evans got out of the building and with difficulty reached the shoulder of the road. A car came along and stopped. When Evans attempted to get in this car, Matthews 'fired a pistol over the top of this car 2 or 3 times,' and the car 'immediately sped off and left this man (Evans) lying on the shoulder of the road.'
There was evidence tending to connect defendant with the crime. Decision on this appeal is based on the admission over defendant's objections of the portion of such evidence set forth below.
Defendant's assignments of error, based on his exceptions to the court's denial of his general motions for judgment as of nonsuit, are overruled. Pertinent legal principles include the following: (1) Admitted evidence, whether competent or incompetent, must be considered in passing on defendant's motions for judgment as of nonsuit. State v. McMilliam, 243 N.C. 771, 774, 92 S.E.2d 202; Early v. Eley, 243 N.C. 695, 700, 91 S.E.2d 919; Kientz v. Carlton, 245 N.C. 236, 246, 96 S.E.2d 14. (2) A motion for judgment as of nonsuit addressed to the entire bill is properly overruled if there is evidence sufficient to support a conviction of the crime charged or of an included (G.S. § 15-170) crime. State v. Brooks, 206 N.C. 113, 114, 172 S.E. 879; State v. Marsh, 234 N.C. 101, 105, 66 S.E.2d 684.
Defendant assigns as error the admission over his objections of testimony of Deputy Sheriff Covert as to statements made by Oliver Evans on February 12, 1963, at Wake Memorial Hospital. The facts in evidence bearing upon the competency of this testimony are stated below.
Covert arrested defendant shortly after 7:30 a. m., February 9, 1963, and put him in the Wake County Jail. Thereafter, defendant was in custody. Covert advised defendant he was 'under arrest for burglary.' Between February 9th and February 12th, Covert questioned defendant 'several times.' Covert testified: 'Virgil repeatedly told me that he did not know anything about the breakin.'
From early morning on February 9th until February 12th and thereafter, Evans was a patient in Wake Memorial Hospital. On the night of February 11th, Covert went to the hospital and obtained a statement signed by Evans 'of where he was and what happened on the morning of the 9th.' Covert testified: (Note: The written statement was not offered in evidence.)
The following day, February 12th, defendant was taken to Evans' hospital room. In the presence of Evans, A. G. Scarborough, a deputy sheriff, and defendant, Covert read the statement he had obtained from Evans the preceding night and asked Evans if it was true. Evans stated it was true. Thereafter, according to Covert, Evans made the following statement in the presence and hearing of defendant:
Covert testified: ...
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...the perpetrator of such offense. If so, the motion is properly denied. State v. Rowland, 263 N.C. 353, 139 S.E.2d 661; State v. Virgil, 263 N.C. 73, 138 S.E.2d 777; State v. Goins and State v. Martin, 261 N.C. 707, 136 S.E.2d 97. In making this determination, the evidence must be considered......
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State v. Smith
...to the State must be considered when ruling on the motion. State v. Walker, 266 N.C. 269, 145 S.E.2d 833 (1966); State v. Virgil, 263 N.C. 73, 138 S.E.2d 777 (1964). Contradictions and discrepancies are matters for the jury and do not warrant nonsuit. State v. Bolin, 281 N.C. 415, 189 S.E.2......
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State v. Lewis, 250
...denial, see State v. Guffey, 261 N.C. 322, 134 S.E.2d 619, and cases cited; State v. Moore, 262 N.C. 431, 137 S.E.2d 812; State v. Virgil, 263 N.C. 73, 138 S.E.2d 777. Although the quoted finding of fact relating to statements attributed to Evans incorporates certain language ordinarily use......
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State v. Osborne
...account and so considered by the court in ruling upon the motion [for nonsuit in a criminal action]"); and then citing State v. Virgil , 263 N.C. 73, 75, 138 S.E.2d 777, 778 (1964) (same)). For that reason, a reviewing court errs to the extent that it determines whether the evidence suffice......