BROGDEN, J., dissenting. 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 27 March, 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 torturous 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 28 March, 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 *Page 651 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 two 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. 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. 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: S. v. Allen, 197 N.C. 684;S. v. McKinnon, 197 N.C. 576; S. v. Lawrence, 196 N.C. 562,146 S.E. 395; S. v. Melton, 187 N.C. 481, 122 S.E. 17; *Page 652 S. v. Young, 187 N.C. 698, 122 S.E. 667; S. v. Griffith, 185 N.C. 756,117 S.E. 586; S. v. Bynum, 175 N.C. 777, 95 S.E. 101; S. v.Matthews, 162 N.C. 542, 77 S.E. 302; S. v. Taylor, 159 N.C. 465,74 S.E. 914; S. 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. S. v.Plyler, 153 N.C. 630, 69 S.E. 269.
The evidence as to the identity of the tracks was competent. S. 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, 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. S. v. Young, supra; S. v.Griffith, supra; S. v. Taylor, supra; S. v. Fain, 177 N.C. 120,97 S.E. 716; S. v. Martin, 173 N.C. 808, 92 S.E. 597; S. v. Freeman,146 N.C. 615, 60 S.E. 986; S. v. Hunter, 143 N.C. 607, 56 S.E. 547; S. v.Adams, 138 N.C. 688, 50 S.E. 765; S. v. Daniels, 134 N.C. 641,46 S.E. 743; S. v. Morris, 84 N.C. 756; S. v. Reitz, 83 N.C. 634; S. v.Graham, 74 N.C. 646; Annotation: 31 A.L.R., 204.
Speaking to the subject in S. v. Spencer, 176 N.C. 709, 97 S.E. 155,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. S. v. Bridgers, 172 N.C. 879,89 S.E. 804; S. 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. S. 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 *Page 653 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. S. 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. S. 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. S. v. King, 196 N.C. 50, 144 S.E. 518. Or as said in S. v. Carlson, 171 N.C. 818, 89 S.E. 30; "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. S. v. Carmon,145 N.C. 481; S. v. Walker, 149 N.C. 527; S. v. Costner, 127 N.C. 566. The effect of Laws 1913, ch. 73, allowing a motion for nonsuit in a criminal case, was considered in S. v. Moore, 166 N.C. 371, S. v. Gibson,169 N.C. 318. Where the question is whether there is evidence sufficient to warrant a verdict, this Court considers only the testimony favorable to the State, if there is any, discarding that of the prisoner. S. v. Hart,116 N.C. 976. The weight of the evidence and the credibility of the witnesses are matters for the jury to pass upon. S. v. Utley,126 N.C. 997."
The accepted rule, it is true, is that, in cases where the State relies upon circumstantial evidence for a conviction, the circumstances and evidence must be such as to produce in the minds of the jurors a moral certainty of the defendant's guilt and to exclude any other reasonable hypothesis. S. v. Matthews, 66 N.C. 106; S. v. Melton, supra. Here, the incriminating evidence, taken in its entirety, if accepted and believed by the jury, would seem to be sufficient to warrant the verdict. S. v. McLeod,supra. This is as far as we are permitted to go in considering the defendant's demurrer to the evidence or motion for judgment as in case of nonsuit under C. S., 4643.
The fact that the defendant offered no evidence, but relied upon the legal presumption of innocence and the weakness of the State's case, is not to be taken against him. C. S., 1799. The presumption of innocence which surrounds a defendant on his plea of "not guilty," goes with him throughout the trial and is not overcome by his failure to testify in his own behalf. He is not required to show his innocence. The burden is on the State to prove his guilt beyond a reasonable doubt. *Page 654 S. v. Singleton, 183 N.C. 738, 110 S.E. 846. And while his absence from the witness stand or his failure to testify, may be a circumstance not without its moral effect upon the jury, of which every lawyer appearing for a defendant is always conscious, yet this fact, as a matter of law, creates no presumption against him, and is not a proper subject for comment by the solicitor in arguing the case to the jury. S. v. Tucker, 190 N.C. 708,130 S.E. 720.
The rulings in S. v. Montague, 195 N.C. 20, 141 S.E. 285, S. v.Rhodes, 111 N.C. 647, 15 S.E. 1038, S. v. Goodson, 107 N.C. 798,12 S.E. 329, S. v. Brackville, 106 N.C. 701, 11 S.E. 284, and S. v.Massey, 86 N.C. 660, are distinguishable, as they were based upon facts essentially different from those appearing on the present record.
A searching scrutiny of the record leaves us with the impression that the case was properly submitted to the jury.
No error.