State v. Prince

• Decision Date: 21 September 1921
• Docket Number: 91.
• Citation: 108 S.E. 330,182 N.C. 788
• Parties: STATE v. PRINCE.
• Court: North Carolina Supreme Court

108 S.E. 330

182 N.C. 788

STATE v. PRINCE.

No. 91.

Supreme Court of North Carolina

September 21, 1921

Appeal from Superior Court, Chatham County; Lyon, Judge.

Young Prince was convicted of manufacturing spirituous liquor, and appeals. Reversed.

In a prosecution for manufacturing spirituous liquor, evidence held insufficient to support a verdict of guilty, and that it was error for the court not to grant a nonsuit.

The only question is whether there was any evidence of his guilt and this was raised by his motion to nonsuit the state. The evidence substantially was that three officers had searched near defendant's premises, on May 10, 1921, and about one-half or three-quarters of a mile from his house they found a distillery that was being operated, and the materials were there for making whisky. There was a path leading from the distillery up a hill about 150 yards to a road, which was intersected by the railroad, and led to the defendant's house; but the road passed his house and extended to the neighborhood beyond and in the direction of Raleigh. There was a path from the house of the defendant to a spring about 200 yards away, and a path led from the spring to an old place where a distillery furnace had once been, "which showed no signs of recent use." A pile of sawdust was found some distance beyond this spring, and beyond this sawdust there was evidence of a distillery furnace having been operated some time in the past, but which had not been recently used. They found an old still worm in the edge of the woods and back of defendant's garden, but there was nothing to indicate any recent use of it, and it apparently had been lying there, exposed to the weather, for quite a while. Not far from this old and unused distillery worm, a jug of something, having the appearance of tomato beer, was found. It resembled something found at the distillery three-quarters of a mile away, which they took to be tomato beer.

The defendant was not at home, and they did not see him on this raid or search; his premises and house were searched without objection by his wife, who assured them before they went in that they would find nothing, and they found nothing there as she had stated. In the barn or granary of the defendant there was found a barrel containing a few gallons of molasses, estimated to be not over five gallons. Following the road past the defendant's house from the direction of the distillery, going directly west into the woods, something like 300 yards from the defendant's home and about 35 or 40 yards from the road, two five-gallon jugs were found sitting behind a log and were in guano sacks, but were unstopped. One of them was empty, and the other one contained about a cupful of something that had the odor of whisky. All the witnesses admitted that nothing was found in the home of the defendant to arouse the least suspicion that whisky was being stored or kept there. Each witness stated he knew not whether the land belonged to the defendant where the still sites were found, and none of these witnesses knew whether the still worm, or jug of tomato beer, or any jugs, were on the premises of defendant; that the defendant was not seen in connection with either the distillery, the empty jugs, or the still worm, and was not at home on this occasion.

The witness Ferguson, who lived in Prince's neighborhood, testified that the path leading from the distillery in the direction of the defendant's home had been used as a school path for a number of years. Motion to nonsuit, submitted at the close of all the evidence, which is above set forth, was overruled. Defendant excepted and appealed.

A. C. Ray, of Pittsboro, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER J.

We have examined the evidence with close scrutiny, and can find none upon which a verdict of guilty can reasonably be based, if there is any upon which to raise even a well-founded suspicion. All of the circumstances, upon which the state solely relies, may exist, and yet the defendant be innocent. Either singly, or in combination, they produce no assurance of guilt, but at most only a mere conjecture, or surmise of it, which is certainly not sufficient as evidence. Byrd v. Express Co., 139 N.C. 273, 51 S.E. 851. In State v. Vinson, 63 N.C. 335, this court thus states the rule:

"We may say with certainty that evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient foundation for a verdict, and should not be left to the jury."

And in Brown v. Kinsey, 81 N.C. 245, it is said:

"The rule is well settled that if there be no evidence, or if the evidence be so slight as not reasonably to warrant the inference of the fact in issue or furnish more than materials for a mere conjecture, the court will not leave the issue to be passed on by the jury."

In the later case of Young v. Railroad, 116 N.C. 932, 21 S.E. 177, the court says:

"Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character as that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence."

See Cobb v. Fogalman, 23 N.C. 440; Wittkowsky v. Wasson, 71 N.C. 451; Sutton v. Madre, 47 N.C. 320; Pettiford v. Mayo, 117 N.C. 27, 23 S.E. 252; Lewis v. Steamship Co., 132 N.C. 904, 44 S.E. 666.

It all comes to this: That there must be legal evidence of the fact in issue, and not merely such as raises a suspicion or conjecture in regard to it. The state must do more than show the possible liability of the defendant for the crime. It must go further, and offer at least some evidence which reasonably tends to prove every fact essential to its success. This has not been done in the case now before us.

We may say generally that evidence should raise more than a mere conjecture as to the existence of the fact to be proved. The legal sufficiency of proof and the moral weight of legally sufficient proof are very distinct in the conception of the law. The first lies within the province of the court; the last within that of the jury. Applying the maxim, "de minimis non curat lex," when we say that there is no evidence to go to the jury, we do not mean that there is literally and absolutely none, for as to this there could be no room for any controversy; but there is none which ought reasonably to satisfy the jury that the fact sought to be proved is established, though there is no practical or logical difference between no evidence and evidence without legal weight or probative force. The sufficiency of evidence in law to go to the jury does not depend upon the doctrine of chances. However confidently one, in his...