State v. Costner

• Citation: 127 N.C. 566,37 S.E. 326
• Court: North Carolina Supreme Court
• Decision Date: 04 December 1900
• Parties: STATE. v. COSTNER.

127 N.C. 566

37 S.E. 326

STATE.

v.COSTNER.

Supreme Court of North Carolina.

Dec. 4, 1900.

BURGLARY—IDENTITY OF DEFENDANT—EVIDENCE—INSTRUCTIONS—ARGUMENT BY COUNSEL.

1. Where, on a prosecution for burglary, a witness testifies that the man who entered the house was small of stature, without coat or hat, and that she knew defendant's figure, but not his face, it is not error to permit such witness to testify that the figure of the man resembled the defendant more than any one else she could think of.

2. Where there is evidence of defendant's guilt, it is not error to refuse to instruct that on all the evidence the jury should return a verdict of not guilty.

3. It is not improper for the prosecuting counsel to comment on the fact that defendant had failed to introduce witnesses summoned by him, or on the fact that defendant's counsel had brought no witness to show where defendant spent the night on which the burglary of which he was accused occurred, there being evidence that after the burglary defendant went to a certain house, and spent the balance of the night, and that he told a party next morning that he spent the night at a certain other place, which the owner of the latter place denied.

Faircloth, C. J., dissenting.

Appeal from superior court, Catawba county; Moore, Judge.

Wade Costner was convicted of burglary, and he appeals. Affirmed.

The Attorney General, for the State.

MONTGOMERY, J. The defendant, whose character was said to be good, by his employer on the trial, was convicted of burglary in the second degree at the August term, 1900, of the superior court of Catawba county. The case, as we read It from the evidence, presents some peculiar phases. It appears from the evidence that the defendant was found lying or crouching on the floor, near the side of the bed in which one of the witnesses was sleeping, between 12 and 1 o'clock at night. There were three grown persons sleeping in the same room at the time. The windows were up. It is difficult to believe that the purpose of the defendant was to do any harm to the occupants of the room, and, from the evidence, nothing was disturbed. The evidence as to the identity of the defendant, while more than a scintilla, was little more than shadowy. The two witnesses for the state who were occupants of the room did not claim to know the face of the defendant, and one of them did not know that the intruder was white or black, and both witnesses closed the testimony by saying, —one, "I never claimed that I could swear that the defendant is the person who entered the house;" and the other, "I do not claim to have identified the man who was in the room." There was evidence, however, concerning the defendant's whereabouts on the night of the occurrence, which to some extent compromised the defendant, and which probably had undue weight with the jury; but with that we can have no concern.

The first exception of the defendant was to the receiving by his honor of certain evidence testified to by one of the occupants of the room. She had said that the man who entered the room was small of stature, without coat or hat, and that she knew defendant's figure, but not his face. She was asked by the...