State v. Lowther, 4

• Decision Date: 22 September 1965
• Docket Number: No. 4,4
• Citation: 265 N.C. 315,144 S.E.2d 64
• Court: North Carolina Supreme Court
• Parties: STATE, v. Clarence Willie LOWTHER.

Page 64

144 S.E.2d 64

265 N.C. 315

STATE, v. Clarence Willie LOWTHER.

No. 4.

Supreme Court of North Carolina.

Sept. 22, 1965.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harry W. McGalliard and Asst. Atty. Gen. James F. Bullock, for the State.

George E. Tillett, Edenton, Samuel S. Mitchell and Romallus O. Murphy, Raleigh, for defendant appellant.

PARKER, Justice.

The State's evidence was amply sufficient to carry the case to the jury on both counts in the indictment. Defendant made no motion for judgment of nonsuit, makes no contention in his brief that the State's evidence was insufficient to carry the case to the jury on both counts in the indictment, and his only assignments of error are to the charge.

Defendant assigns as error this part of the charge:

'Now as I stated to you the State relies upon what is known as circumstantial evidence. Now circumstantial evidence, gentlemen of the jury, is a recognized and accepted instrumentality in North Carolina, in the ascertainment of the truth, and is highly acceptable in matters of most grave moment, but the circumstances and conditions relied upon must be such as are not only consistent with guilt, but must be inconsistent with innocence.'

A reading of the entire charge shows that the above quotation is the only instruction in respect to circumstantial evidence given by the court to the jury.

When the State relies upon circumstantial evidence to convict, it seems that not infrequently counsel and at times the trial court have been confused as to 'the rules for testing the quantum of proof necessary (1) to carry a case to the jury, and (2) thereafter to warrant the jury in returning a verdict of guilty.' State v. Moore, 262 N.C. 431, 137 S.E.2d 812.

'In all fairness it may be observed that [in respect to circumstantial evidence] some of the decisions of this Court have not tended to clarify the distinction between the court's and the jury's functions.' State v. Davis, 246 N.C. 73, 97 S.E.2d 444.

The rule in respect to the sufficiency of circumstantial evidence to carry the case to the jury is lucidly stated in an opinion by Higgins, J., in State v. Stephens, 244 N.C. 380, 93 S.E.2d 431, as follows:

'We are advertent to the intimation in some of the decisions involving circumstantial evidence that to withstand a motion for nonsuit the circumstances must be inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt. We think the correct rule is given in State v. Simmons, 240 N.C. 780, 83 S.E.2d 904, 908, quoting from State v. Johnson, 199 N.C. 429, 154 S.E. 730: "If there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury." The above is another way of saying there must be substantial evidence of all material elements of the offense to withstand the motion to dismiss. It is immaterial whether the substantial evidence is circumstantial or direct, or both. To hold that the court must grant a motion to dismiss unless, in the opinion of the court, the evidence excludes every reasonable hypothesis of innocence would in effect constitute the presiding judge the trier of the facts. Substantial evidence of guilt is required before the court can send the case to the jury. Proof of guilt beyond a reasonable doubt is required before the jury can convict. What is substantial evidence is a question of law for the court. What that evidence proves or fails to prove is a question of fact for the jury.'

This has been quoted with approval in whole or in part in State v. Davis, supra; State v. Horner, 248 N.C. 342, 103 S.E.2d 694; State v. Parrish, 251 N.C. 274, 111 S.E.2d 314; State v. Haddock, 254 N.C. 162, 118 S.E.2d 411; State v. Thompson, 256 N.C. 593, 124 S.E.2d 728. The rule as stated in the Stephens case has been approved as recently as the Fall Term 1964 in State v. Moore, supra.

No set form of words is required which the court must use to convey to the jury the rule relating to the degree of proof required for conviction on circumstantial evidence in a criminal case. State v. Shook, 224 N.C. 728, 32 S.E.2d 329. This Court has consistently held that circumstantial evidence is...