CLARK and MONTGOMERY, JJ., dissent. The evidence tends to establish a horrible murder. This was hardly disputed, though there was evidence offered to show that the deceased Moore had been in possession of dynamite, which he had sometimes used. The evidence tends to show that the deceased Moore and Bowman went to sleep in this world and woke up in eternity; and the question for the jury was one of identity.
There are exceptions to evidence, but they cannot be sustained, and the ruling of the court upon defendant's exceptions as to evidence are based upon principles so often sustained by this Court that we cannot think it profitable to the defendant or the profession to discuss them in this opinion.
There are exceptions to his Honor's charge (which seems to us to have been a fair and correct exposition of the law, provided there was *Page 685 sufficient evidence to authorize him in submitting the case to the jury, and to justify them in finding a verdict of guilty). The prisoner contended there was not, and asked the court to so instruct the jury. This his Honor declined to do, and this is the real question presented by this appeal.
It is contended for the State that there is some evidence of defendant's guilt, and this being so, it takes the case to the jury, and that this Court cannot correct their verdict; and cites S. v. Allen, 48 N.C. 257, and a number of other cases, which the Attorney-General contends sustain this contention. If the first proposition is true, that there is sufficient evidence to authorize the finding of the jury, then the second proposition would be certainly true — that this Court cannot review (1084) their finding.
But this is the question in the case that we are called upon to decide: whether there is sufficient evidence to go to the jury and to justify their finding. This question is often embarrassing to the courts, and probably gives them as much trouble as any question that comes before them; and with that disposition that is in all persons to avoid responsibility, it is but natural that it should sometimes be left to the jury when it should be decided by the judge. And it is considered best in questions of very great doubt that it should be left to the jury.
This makes it necessary that we should review the testimony to see what evidence there is connecting the defendant with the corpus delicti. In doing this we do not expect to quote the testimony (though we have carefully examined it all) but only to call attention to those parts bearing most strongly against the prisoner.
There was evidence offered by the State tending to show that the prisoner lived a mile and a half from the place of the homicide; that he was a well-to-do man, was overseer of the public road, and had been and was at that time in possession of dynamite which he used in making the road. "There was also evidence that dynamite was had by other persons in the community, and used by them for fishing . . . blasting, and other purposes"; that he had at one time been in the employ of the deceased, who dismissed the prisoner from his employ, and that the prisoner and the deceased Moore had a quarrel about the matter; that the prisoner and the deceased Bowman had been unfriendly; that prisoner had courted a widow Benfield who had discarded him because, as prisoner thought, she preferred Bowman as a suitor (1085) to the prisoner; and that prisoner had said if she and Bowman did marry they should never live together in this country; that prisoner and deceased had made friends, but prisoner after this said it was "only from the teeth out"; that there were some tracks made by an 8 or 9 shoe on a hillside a few hundred yards from the place of the homicide, and *Page 686 that prisoner wore an 8 or 9 shoe; that prisoner was seen plowing in a field unusually early next morning, in about a half mile of the place where the men were killed, and that prisoner next day looked pale and nervous. The prisoner introduced no evidence.
This is substantially all the evidence in the case, and all as we think that tends to connect the prisoner with the homicide, if this tends to do so. It cannot be denied that this evidence was sufficient to case suspicion on the prisoner. But does it do more than this? There was no evidence of any confession or declarations amounting to confessions. There was no evidence shown or tending to show that the prisoner was nearer the place of the homicide than his home, one and a half miles off. The shoe tracks found on the hillside not far off were no evidence connecting the prisoner with the killing, as there was no peculiarity shown about the tracks or the prisoner's shoes. No. 8 or 9 is the ordinary number that men wear. Threats may be offered to show malice for the purpose of fixing the degree of crime, and may be competent, as some evidence, tending to prove identity. But for this purpose it was very slight evidence, if any. The rule is, not that there is some evidence, a scintilla, but that it must be such as would reasonably justify the verdict. Wittkowsky v. Wasson, 71 N.C. 451; Spruill v. Ins. Co., 120 N.C. (1086) 141; Caldwell v. Wilson, 121 N.C. 423.
The court, among other things, charged the jury as follows: "No eyewitness has testified that he saw the prisoner do this deed. The State relies on facts and circumstances which it claims establish the guilt of the prisoner. When such evidence is relied on for conviction, every material and necessary circumstance must be established beyond a reasonable doubt, and the entire circumstance so established must be so strong as to exclude every reasonable supposition but that of guilt." This was a "clear-cut" charge and a correct statement of the law. But can any reasonable man, unbiased and without prejudice, say that the evidence in this case, taking everything proved to be true (and that is the light in which it must be considered by this Court), excludes every reasonable supposition that it could have been done by some one other than the prisoner? Without discussing the matter further, the statement of this proposition of law, correctly given to the jury, we think affords the answer to all intelligent minds, when coolly and deliberately considered, in the negative.
This we say without intending any reflection on the integrity of the jury that tried the case. It was a shocking affair. There was evidence throwing suspicion on the prisoner. He introduced no evidence — did not go on the witness stand and deny the charge. And while the law *Page 687 says he need not do this, and that his not doing so shall not be considered against him, it is impossible to prevent it from having its effect upon the jury. In our opinion it had it in this case.
In our opinion there was not such evidence of the prisoner's guilt as to justify the jury in finding a verdict of guilty. Another trial may develop other evidence. Error. (1087)
New trial.