State v. Montague

• Citation: 141 S.E. 285,195 N.C. 20
• Decision Date: 31 January 1928
• Docket Number: 551.
• Parties: STATE v. MONTAGUE.
• Court: North Carolina Supreme Court

141 S.E. 285

195 N.C. 20

STATE v. MONTAGUE.

No. 551.

Supreme Court of North Carolina

January 31, 1928

Appeal from Superior Court, Buncombe County; Shaw, Judge.

Anna K Montague was convicted of murder in the second degree, and she appeals. Reversed.

The defendant, Anna K. Montague, was indicted for the murder of Mary A. Cooper, and was convicted of murder in the second degree, and sentenced to the State Prison for a term of not less than 12, nor more than 20, years at hard labor. The record shows that the jury "recommends the defendant to the mercy of the court."

Adams J., and Stacy, C.J., dissenting.

Circumstantial evidence held insufficient to sustain a conviction of murder in the second degree.

Lusk & Beachboard, R. R. Reynolds and Wm. A. Sullivan, all of Asheville, for appellant.

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

BROGDEN J.

The testimony discloses certain independent and unconnected circumstances upon which the state relied for conviction. The principle of law declared in State v. Goodson, 107 N.C. 798, 12 S.E. 329, is pertinent to the facts disclosed in this case. Goodson was convicted of murder and sentenced to death. The court said:

"We have examined with much care and scrutiny the evidence sent up as part of the case stated on appeal, and are of opinion that it was not sufficient to prove the prisoner's guilt, or to go to the jury for that purpose. Accepting the evidence as true, and sufficient to prove the facts to which it related, and giving these facts, severally and collectively, and in their bearing each upon the other, due weight, in any view of them they simply raise a strong suspicion of his guilt. The evidence pointing to the prisoner is circumstantial. The facts may be true; they may be taken, in any combination of them of which in their nature they are capable, and they fail to prove his guilt; they are inconclusive as to the material fact of guilt. *** This full summary of the incriminating facts, taken in the strongest view of them adverse to the prisoner, excite suspicion in the just mind that he is guilty, but such view is far from excluding the rational conclusion that some other unknown person may be the guilty party. The mind is not simply left in a state of hesitancy and anxious doubt-it refuses to reach a conclusion."

So, in the present case, much could perhaps be written upon the various aspects of circumstantial evidence as a means of arriving at ultimate truth. Much, too, could be written with reference to weighing these circumstances and knitting them together in various and sundry combinations. But, after all, the whole matter resolves itself into an interpretation of the record. As to this, different minds will reach different conclusions. Although we should assemble the precedents and authorities in martial array, and dissect each one, the inevitable and ultimate question would still be ever present: "How do you apply these principles to the present record?"

After a diligent investigation, by the entire court, of the record and briefs, three of us are of the opinion that the circumstances relied upon for conviction create suspicion more or less grave, but do not rise to that dignity and import which the law recognizes as competent evidence upon the charge laid in the bill of indictment. After the same diligent investigation, two of us hold the contrary view.

In this situation, therefore, we hold that the judgment of nonsuit, duly made at the close of the entire testimony, should have been allowed.

Reversed.

ADAMS J. (dissenting).

In State v. Carlson, 171 N.C. 823, 89 S.E. 32, it was said by this court:

"The motion to nonsuit requires that we should ascertain merely whether there is any

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