State v. West

• Court: North Carolina Supreme Court
• Writing for the Court: MANNING
• Citation: State v. West, 152 N.C. 832, 68 S.E. 14 (N.C. 1910)
• Decision Date: 17 May 1910
• Parties: STATE v. WEST.

68 S.E. 14

(152 N.C. 832)

STATE

v.WEST.

Supreme Court of North Carolina.

May 17, 1910.

1. Criminal Law (§§ 308, 552^*) — Circumstantial Evidence—Sufficiency.

Every one is presumed to be innocent until the contrary is proved, and where there is any reasonable hypothesis, under which the circumstances established by circumstantial evidence are consistent with the innocence of accused, he should be acquitted.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 731, 1261; Dec. Dig. §§ 308, 552.*]

2. Criminal Law (§ 552*)—Circumstantial Evidence—Sufficiency.

To justify a conviction on circumstantial evidence, the jury must be satisfied that the facts shown and their relations and combinations are reasonably clear and satisfactory, and the testimony must be clear, convincing, and conclusive, so as to exclude all rational doubt of accused's guilt.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1261; Dec. Dig. § 552.*]

3. Criminal Law (§ 814*)—Instructions-Application to Evidence.

An instruction, the refusal of which is assigned as error, must contain not only a correct statement of law, but must be sustained by and be applicable to some view of the evidence.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1979; Dec. Dig. § 814.*]

4. Criminal Law (§ 814*)—Evidence—Instructions—Applicability.

Where the state relied on the confession of accused and on circumstances showing an opportunity to commit the crime charged, and accused relied on an alibi, instructions on circumstantial evidence, though correct as abstract propositions, were properly refused.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1883; Dec. Dig. § 814.*]

5. Homicide (§ 310*) — Evidence—Instructions—Applicability.

Where, on trial for secret assault with intent to kill, the state showed that accused in the nighttime followed prosecutor and a third person, slipped through the woods, hid himself, and fired his gun loaded with shot directly at prosecutor and the third person and at close range, hitting the prosecutor in the eye, a charge that it is not common sense or law to infer the worst intent which the facts admit of was properly refused.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 660; Dee. Dig. § 310.*]

6. Homicide (§ 89*)—Assault with Intent to Kill.

Where one intending to shoot one person secretly, shot another and destroyed an eye, he was guilty of assault with intent to kill.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 116; Dec. Dig. § 89.*]

Appeal from Superior Court, Burke County; Councill, Judge. Will West was convicted of secret assaultwith intent to kill, and he appeals. Affirmed.

The defendant was indicted, tried, and convicted of a secret assault upon one J. D. Morgan, with intent to kill, on the night of the 24th of January, 1910, in Burke county. The prosecuting witness, Morgan, testified that he, in company with several other men, was walking along a road, he and one Fisher in front; that a gun fired; his eye was shot out, leaving him totally blind, as he had previously lost the sight of one eye; that it was between 9 and 10 o'clock at night; there were bushes on the side of the road which concealed the presence of the person who shot; that he did not know of the presence of the man who shot him, or see or hear him until he was shot. Blackwood Warlick testified for the state that he saw the defendant the morning after the shooting, and heard him say that he had shot at Wyatt Fisher and could not shoot Fisher without hitting Morgan, and described how he slipped along through the woods and bushes until he got opposite Fisher and Morgan, when he shot. There were other witnesses offered by the state, who testified to similar statements of the defendant, and who detailed other circumstances connecting the defendant with the shooting. The only witnesses for the defendant were himself and his wife. This evidence tended to prove an alibi. The jury returned a verdict of guilty, and from the judgment, the defendant appealed.

R. L. Huffman, for appellant.

Attorney General Bickett and Geo. L. Jones, for the State.

MANNING, J. The assignments of error insisted upon by the defendant are to the refusal of his honor to give three special instructions. There were no exceptions taken to the evidence, and two of the errors assigned to the charge are abandoned in the brief of the learned counsel for the defendant. The defendant requested the judge to charge the jury: "That every man is presumed to be innocent until the contrary is proven, and it is a well-established rule in criminal cases that if there is any reasonable hypothesis upon which the circumstances are consistent with the innocence of the accused, the jury should render a verdict of not guilty." The particular part of the instruction which defendant insists should have been given by his honor is that "if there is any reasonable hypothesis, " etc. The prayer correctly states the rule of law which has been approved by this court in State v. Massey, 86 N. C. 658, 41 Am. Rep. 478; State v. Smith, 136 N. 0. 686, 49 S. E. 336. The third rejected prayer was as follows: "That before you can convict the defendant upon the circumstantial evidence relied upon by the state you must be Satisfied that such circumstantial testimony, the facts, their relations, connections, and combinations are reasonable,...