State v. McCuien

• Decision Date: 02 August 1972
• Docket Number: No. 724SC477,724SC477
• Citation: 15 N.C.App. 296,190 S.E.2d 386
• Parties: STATE of North Carolina v. RobertMcCUIEN.
• Court: North Carolina Court of Appeals

Page 386

190 S.E.2d 386

15 N.C.App. 296

STATE of North Carolina v. RobertMcCUIEN.

No. 724SC477.

Court of Appeals of North Carolina.

Aug. 2, 1972.

Certiorari Denied by Supreme Court Oct. 3, 1972.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. Andrew A. Vanore for the State.

Edward G. Bailey, Jacksonville, for defendant appellant.

MALLARD, Chief Judge.

The defendant contends that there are two questions presented for decision on this appeal: (1) whether the trial court erred in denying his motion for nonsuit at the close of the State's evidence, and (2) whether the trial court erred in denying his motion to set aside the verdict as being against the greater weight of the evidence.

The defendant failed to renew his motion for nonsuit at the conclusion of all the evidence; however, we will review the sufficiency of the evidence of the State on this appeal. See State v. Pitts, 10 N.C.App. 355, 178 S.E.2d 632 (1971), cert. denied, 278 N.C. 301, 180 S.E.2d 177; and G.S. § 15--173.1.

The evidence for the State in the case before us tended to show that early in the morning of 1 January 1972, the television repair shop at Furniture Fair, Inc., a corporation near Jacksonville, North Carolina, was broken and entered by means of breaking out the lower portion of a glass door and that four portable television sets were stolen therefrom. Mr. B. G. Woodward, an Onslow County deputy sheriff, testified that about 9:05 a.m. on 1 January 1972, he observed the defendant's automobile being driven north on U.S. Highway 17 by one Arthur Burke, and that he was looking for Burke. Woodward then went to the defendant's apartment, two or three miles from the Furniture Fair, seeking Burke. He arrived about 9:30 a.m. and found the defendant outside, standing beside his automobile with the car keys in his hand. Woodward inquired if the defendant had seen Burke, and when defendant said that he had not seen him in several days, he informed the defendant that he, the officer, had seen Burke driving the defendant's automobile shortly before. The defendant said that the automobile had been in his driveway beside his apartment since four o'clock that morning. The officer placed his hand on the hood and found that it was warm. He then opened the hood with the defendant's permission and found that the radiator was hot. Looking in the back seat and noticing that the spare tire was in the back seat of the vehicle, the officer asked for permission to look into the trunk and defendant handed him the keys. When the trunk was opened, it was found to contain three portable television sets, which were later identified as three of the four sets stolen from Furniture Fair on 1 January 1972. The defendant denied any knowledge or ownership of the sets and professed not to know how they came to be placed in the trunk of his automobile. The defendant also stated to the officer that the automobile had not been moved since he himself had parked it in the driveway at 4:00 a.m., and that if the officer had just seen Burke driving it, Burke had stolen the car.

Arthur Burke also testified for the State. He testified that he had known the defendant for seven or eight years and that he had started driving the defendant's automobile shortly before midnight (on 31 December 1971); that the defendant was in the automobile with him when they had passed Woodward the morning of 1 January 1972 but that the defendant 'had kind of squashed down' in the front seat because the defendant did not want to be seen with him, and that there was no spare tire in the back seat at that time. On cross-examination, Burke admitted that he had been convicted of stealing a pocketbook from a woman at the Triangle Variety Store on the morning of 1 January 1972 (which was why Woodward was seeking him for questioning on that date), that he had subsequently been convicted of 'temporary larceny' of the defendant's automobile on the same date, and that he had been convicted previously of a number of other crimes (including burglary, breaking and entering and receiving stolen property) and had been addicted to narcotic drugs. Burke, however, denied any participation in the breaking and entering of the Furniture Fair or any knowledge of the televisions stolen therefrom.

Considered in the light most favorable to the State, this evidence was sufficient to take the case to the jury. The cases cited by the defendant are distinguishable. In 2 Strong, N.C. Index 2d, Criminal Law, § 106, it is said:

'Motion to nonsuit in a criminal prosecution is properly denied if there is any competent evidence to support the allegations of the warrant or bill of indictment, considering the evidence in the light most favorable to the state, and giving it the benefit of every reasonable inference fairly deducible therefrom. If there is more than a scintilla of competent evidence to support the allegations of the warrant or bill of indictment, motion to nonsuit is properly denied. And if there is evidence sufficient to support a conviction of the crime charged or an included crime, motion to nonsuit is properly denied. If there is any evidnce tending to prove the fact of guilt or which reasonably conduces to this conclusion as a fairly logical and legitimate deduction, and not such as merely raises a suspicion or conjecture of guilt, it is for the jury to say whether they are convinced beyond a reasonable doubt of the fact of guilt.

A like rule applies when the state relies upon circumstantial evidence; in such instance it is for the court to determine whether the circumstantial evidence, either alone or in combination with the direct evidence, provides substantial proof of each essential element of the offense, it being for the jury to determine whether such evidence points unerringly to defendant's guilt and excludes any other reasonable hypothesis. Decisions to the effect that the court must determine, in passing upon a motion to nonsuit, whether the circumstantial evidence excludes any other reasonable hypothesis but guilt, are apparently no longer the law, in view of the later decisions cited in this section.'

See also, State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967); State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967); State v. Blackmon, 6 N.C.App. 66, 169 S.E.2d 472 (1969) and State v. Godwin, 3 N.C.App. 55, 164 S.E.2d 86 (1968), cert. denied, 275 N.C. 341.

In State v. Godwin, Supra, this court stated the rule as follows:

'* * * The test of the sufficiency of circumstantial evidence to withstand a motion for nonsuit is the same as the rule applicable to direct evidence. 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. Reliance upon circumstantial evidence does not make it necessary that every reasonable hypothesis of innocence be excluded before the case can be submitted to the jury. State v. Swann, 272 N.C. 215, 158 S.E.2d 80.'

The defendant's own evidence, and particularly the testimony of the defendant himself, tended to contradict some of the testimony of Woodward nd Burke. This was of no consequence insofar as it related to the question of nonsuit, being a matter of credibility for determination by the jury.

As to the doctrine of possession of recently stolen goods and the quantum of evidence necessary to overcome motion for judgment as of nonsuit, see State v. Foster, 268 N.C. 480, 151 S.E.2d 62 (1966); State v. Allison, 265 N.C. 512, 144 S.E.2d 578 (1965); and State v. Holloway, 265 N.C. 581, 144 S.E.2d 634 (1965). W...