Criminal prosecution on indictment charging the appealing defendant and two others with breaking and entering an industrial plant with intent the goods and chattels therein, the property of the owner, to steal and carry away.
In response to a telephone call, shortly before 2:00 a.m., 28 May, 1948. three members of the Charlotte police force arrived at the plant of the Coca-Cola Bottling Company, situate on Morehead Street, near Summit Avenue, and immediately thereafter saw three boys cross Morehead Street and run up Summit Avenue about a quarter of a block away. One of the officers identified the boys as McMahon, Cranford and Robertson (defendants herein). The three boys entered a Terraplane-Hudson automobile and drove quickly away. The officers gave chase and stopped them after a run of about ten miles. McMahon who was driving told the officer "the reason he didn't stop was that he had no driver's license." The car when stopped was occupied by the three defendants herein.
Upon investigation it was found that a window of the Coca-Cola plant had been entered and two desks opened, but nothing particularly disturbed. The only thing missing was a coin changer, and that was found the next morning under a bush just outside the window that had been entered.
When questioned about the break-in, the appealing defendant Robertson told the police that he knew nothing about it.
All three of the occupants of the Terraplane-Hudson automobile were taken into custody, all were indicted herein, convicted and each sentenced to the State's Prison for a term of not less than three nor more than five years.
The defendant Robertson appeals, assigning errors. Undoubtedly the record points an accusing finger at the appealing defendant as one of the participants in the crime here charged. But this would seem to be all. A careful scrutiny of the evidence leaves us with the impression that it falls short of the degree of proof required to convict a defendant in a criminal prosecution. It all may be true, and yet the appealing defendant may be innocent. S. v. Goodson,107 N.C. 798, 12 S.E. 329; S. v. Tillman, 146 N.C. 611, 60 S.E. 902; S. v. Montague, 195 N.C. 20, 141 S.E. 285; S. 77. Battle, 198 N.C. 379,151 S.E. 927; S. v. Shu, 218 N.C. 387, 11 S.E.2d 155 S. v. Penry, 220 N.C. 248, 17 S.E.2d 4. In S. v. Penry, supra, it is said: "The State's case *Page 213 fails at the first hurdle," and in the present case we are inclined to the view that it does so in the end at least.
The State must prove his guilt beyond a reasonable doubt. S. v. Creech,229 N.C. 662, 51 S.E.2d 348; S. v. Harvey, 228 N.C. 62, 44 S.E.2d 472; S. v. Warren, 228 N.C. 22, 44 S.E.2d 207; S. v. Ewing, 227 N.C. 535,42 S.E.2d 676; S. v. Godwin, 227 N.C. 449, 42 S.E.2d 617; S. v. Harris,223 N.C. 697, 28 S.E.2d 232; S. v. Smith, 221 N.C. 400, 20 S.E.2d 360; S. v. Miller, 212 N.C. 361, 193 S.E. 388; S. v. Schoolfield, 184 N.C. 721,114 S.E. 466.
We hold that on the present record the prosecution has failed to make out a case against the appealing defendant. His demurrer to the evidence or motion for judgment in case of nonsuit will be allowed here. G.S.15-173; S. v. Ray, 229 N.C. 40, 47 S.E.2d 494; S. v. Minton, 228 N.C. 518,46 S.E.2d 296; S. v. Wrenn, 198 N.C. 260, 151 S.E. 261.
Reversed.