State v. McLeod

• Decision Date: 30 April 1930
• Docket Number: 92.
• Citation: 152 S.E. 895,198 N.C. 649
• Parties: STATE v. McLEOD.
• Court: North Carolina Supreme Court

152 S.E. 895

198 N.C. 649

STATE v. McLEOD.

No. 92.

Supreme Court of North Carolina

April 30, 1930

Appeal from Superior Court, Lee County; G. E. Midyette, Judge.

Wilbur McLeod was convicted of murder in the first degree, and he appeals.

No error.

Evidence held sufficient for submission to jury in murder prosecution (C.S.§ 4643).

See also, 196 N.C. 542, 146 S.E. 409.

Criminal prosecution tried upon an indictment charging the prisoner with the murder of one Rebecca Matthews.

The evidence on behalf of the state tends to show that on the night of March 27, 1928, about 11 p.m., Mrs. Rebecca Matthews, a woman 77 or 78 years of age, was dragged from her home a distance of thirty yards to the edge of a field where she was found dead soon after midnight, having been brutally assaulted, choked, manhandled, bruised, and ravished by some one with gonorrhea, such as the prisoner had. She died from the assault, shock, and choking.

The first witnesses who came to the aid of the 80 year old husband, himself quite feeble and senile, in searching for his missing wife, heard some one run away from the direction of where the body was found. Toe prints were discovered at the feet of the deceased, apparently made by No. 8 square-toed shoes, such as the defendant wore. Signs of tracks could be seen, but not identified because of the character of the ground, going from the body to a potato patch, a distance of approximately 75 or 100 yards, but here the ground was soft, and the tracks became quite distinct and clear. Similar tracks were identified at a number of places along a tortuous course, apparently taken by the murderer which led to the home of William McLeod, father of the defendant, where the prisoner also lived, and was found in bed about 3 or 4 o'clock in the early morning of March 28, 1928. The shoes which Wilbur McLeod had at that time were freshly polished, and corresponded in every particular with the identification made by the measurements and by placing the shoes in a number of the tracks. The prisoner's shoes measured 11 1/2 inches in length. The sole on the right shoe was 6 inches long, while that on the left measured 6 1/4 inches. They were both 4 1/4 inches in width. The distance from heel to sole on the left shoe was 2 inches, and the distance from heel to sole on the right shoe was 2 1/4 inches. The tracks on the ground showed these identical measurements. They also showed the imprint of rubber heels with peculiar marks, similar to those on the prisoner's shoes. The identification of the tracks as having been made by the defendant's shoes was quite complete.

When arrested, the defendant first told the officers that he had been over to see his aunt that night, and had returned about 12 o'clock. Later he said he was in by 11 o'clock that he slept with his father, and that his father was in bed when he came in. The prisoner was then asked where he was from 9 o'clock until he got home. His reply was: "I might have been in earlier than that." The defendant's father, on being asked what time his son came in that night, said: ""I went to bed at 9 o'clock and he was in bed then." The defendant started to say something, but the officer told him to "keep quiet." He was nervous, and tears came in his eyes.

The prisoner was the only person in William McLeod's house whose shoes could have made the tracks in question. It was also found that he alone of the three negro men in said house who were arrested and examined was suffering from the particular venereal disease, evidence of which was left on the body of the deceased by the person who raped her.

It was further in evidence that the defendant was familiar with the premises, and knew the deceased and her husband. He claimed not to have been in that neighborhood for 2 weeks prior to the killing, but the state's evidence showed that he was in the immediate vicinity on Thursday preceding the homicide on Tuesday.

The defendant offered no evidence, but lodged a motion at the close of the state's case for judgment as of nonsuit under C. S. § 4643. Overruled and exception.

Verdict: Guilty of murder in the first degree.

Judgment: Death by electrocution.

The prisoner appeals, assigning errors.

Young & Young, of Dunn, for appellant.

D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY, C.J. (after stating the case).

The only question presented is the sufficiency of the evidence to warrant the verdict. It is stronger on the present record than it was on the first appeal, 196 N.C. 542, 146 S.E. 409. And it would seem that the evidence in the instant case is fully as strong as that which was submitted to the jury in the following cases: State v. Allen, 197 N.C. 684, 150 S.E. 337; State v. McKinnon, 197 N.C. 576, 150 S.E. 25; State v. Lawrence, 196 N.C. 562, 146 S.E. 395; State v. Melton, 187 N.C. 481, 122 S.E. 17; State v. Young, 187 N.C. 698, 122 S.E. 667; State v. Griffith, 185 N.C. 756, 117 S.E. 586; State v. Bynum, 175 N.C. 777, 95 S.E. 101; State v. Matthews, 162 N.C. 542, 77 S.E. 302; State v. Taylor, 159 N.C. 465, 74 S.E. 914; State v. Wilcox, 132 N.C. 1120, 44 S.E. 625.

True, the evidence is circumstantial, but circumstantial evidence is, not only a recognized and accepted instrumentality in the ascertainment of truth, but in many cases quite essential to its establishment. State v. Plyler, 153 N.C. 630, 69 S.E. 269.

The evidence as to the identity of the tracks was competent. State v. Lowry, 170 N.C. 730, 87 S.E. 62. Indeed, it may be stated as a general rule that the correspondence of tracks, footprints, or ground marks, found in connection with a crime, with the track, footprint, or shoe mark of one accused of the crime, or with the track, footprint, or shoe mark of his horse, or with the track, tread, or wheel mark of his wagon, buggy, or automobile, is admissible in evidence as tending to identify the accused as the perpetrator of the crime; the probative value of such evidence, of course, depending upon the attendant circumstances. State v. Young, supra; State v. Griffith, supra; State v. Taylor, supra; State v. Fain, 177 N.C. 120, 97 S.E. 716; State v. Martin, 173 N.C. 808, 92 S.E. 597; State v. Freeman, 146 N.C. 615, 60 S.E. 986; State v. Hunter, 143 N.C. 607, 56 S.E. 547, 118 Am. St. Rep. 830; State v. Adams, 138 N.C. 688, 50 S.E. 765; State v. Daniels, 134 N.C. 641, 46 S.E. 743; State v. Morris, 84 N.C. 756; State v. Reitz, 83 N.C. 634; State v. Graham, 74 N.C. 646, 21 Am. Rep. 493; annotation, 31 A. L. R. 204.

Speaking to the subject in State v. Spencer, 176 N.C. 709, 97 S.E. 155, 157, Walker J., delivering the opinion of the court, said: "The testimony as to the fitting of the shoe to tracks found where the prisoner had been seen was admissible, as it was a circumstance tending to show identity. *** This is "real' evidence, as called by the civilians, and its value as proof is greater or less according to the circumstances. *** It is some evidence tending to identify the prisoner as the perpetrator of the crime."

It is sometimes difficult to distinguish between evidence sufficient to carry a case to the jury and a mere scintilla, which only raises a suspicion or possibility of the fact in issue. State v. Bridgers, 172 N.C. 879, 89 S.E. 804; State v. White, 89 N.C. 462. And it may be readily conceded that this is one of the border line cases. But, viewing the evidence in its most favorable light for the state, the accepted position on a demurrer or motion to nonsuit, we are of opinion that it is of sufficient probative value to warrant its submission to the jury. State v. Vaughn, 129 N.C. 502, 39 S.E. 629.

The general rule is that, 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; otherwise not, for, short of this, the judge should direct a nonsuit or an acquittal in a criminal prosecution. State v. Vinson, 63 N.C. 335. But, if the evidence warrant a reasonable inference of the fact in issue, it is for the jury to say whether they are convinced beyond a reasonable doubt of such fact, the fact of guilt. State v. Blackwelder, 182 N.C. 899, 109 S.E. 644.

The function of the court, when considering a motion to nonsuit is, not to pass upon the weight of the evidence, but to determine its sufficiency to support the verdict. State v. King, 196 N.C. 50, 144 S.E. 518. Or, as said in State v. Carlson, 171 N.C. 818, 89 S.E. 30, 32: "The motion to nonsuit requires that we should ascertain merely whether there is any evidence to sustain the allegations of the indictment. The same rule applies as in civil cases, and the evidence must receive the most favorable construction in favor of the state for the purpose of determining its legal sufficiency to convict, leaving its weight to be passed upon by the jury. State v. Carmon, 145 N.C. 481, 59 S.E. 657; State v. Walker, 149 N.C. 527, 63 S.E. 76; State v. Costner, 127 N.C. 566, 37 S.E. 326, 80 Am. St. Rep. 809. The effect of Laws 1913, c. 73, allowing a motion for nonsuit in a criminal case, was considered...