State v. Stokesberry

220 S.E.2d 214 (1975)

28 N.C. App. 96

STATE of North Carolina v. Jimmy Lee STOKESBERRY.

No. 753SC630.

Court of Appeals of North Carolina.

December 17, 1975.

*215 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Alfred N. Salley, Asheville, for the State.

Richard Powell, Greenville, for defendant-appellant.

*216 VAUGHN, Judge.

Defendant assigns as error the submission of the case to the jury and the trial judge's failure to grant his motion for directed verdict.

"One of the well recognized rules concerning sufficiency of evidence to withstand motion for nonsuit or motion for a directed verdict is that when the motion questions the sufficiency of circumstantial evidence, the question for the court is whether a reasonable inference of defendant's guilt may be drawn from the circumstances." State v. Spencer, 281 N.C. 121, 187 S.E.2d 779, citing State v. Stephens, 244 N.C. 380, 93 S.E.2d 431.

Upon motion to nonsuit, the evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom, and nonsuit should be denied where there is sufficient evidence, direct, circumstantial, or both, from which the jury could find that the offense charged has been committed and that defendant committed it. State v. Goines, 273 N.C. 509, 160 S.E.2d 469.

In this case the testimony of Smith and others places the stolen goods in the unexplained possession of defendant so soon after the burglary and larceny as to permit the jury to infer that defendant was the thief who took the guns after his felonious breaking and entering of the premises and was sufficient to take the case to the jury.

The defendant next assigns as error the trial court's failure to adequately and sufficiently define "reasonable doubt." Here the trial court defined reasonable doubt as follows:

"A reasonable doubt, ladies and gentlemen, is a doubt based on reason and common sense arising out of some or all of the evidence or lack or insufficiency of the evidence as the case may be. Proof beyond a reasonable doubt means that you must be fully satisfied or entirely convinced or satisfied to a moral certainty of the defendant's guilt. As one of our appellate Courts said in an opinion recently, one of the best definitions of reasonable doubt is the words reasonable doubt themselves."

The instruction given is substantially in accord with the definition of reasonable doubt approved by the Supreme Court. See State v. Mabery, 283 N.C. 254, 195 S.E.2d 304; State v. Bright, 237 N.C. 475, 75 S.E.2d 407; State v. Bryant, 236 N.C. 745, 73 S.E.2d 791; State v. Wood, 235 N.C. 636, 70 S.E.2d 665.

Defendant next contends that the trial judge committed prejudicial error by his inadequate statement of the definitions, rule and applications of circumstantial evidence.

That portion of the charge objected to reads as follows:

"Now, there is no eyewitness testimony that the defendant in this case committed either one of the offenses which are charged in the bill of indictment. The State relies in part upon what is known as circumstantial evidence. The State contends that the circumstances and evidence taken together establish the guilt of the defendant. Now, circumstantial evidence is recognized and accepted as proof in a court of law, however, you must find this defendant not guilty unless all of the circumstances considered together exclude every reasonable possibility of innocence and point conclusively to the guilt of the defendant. Furthermore, before any circumstance upon which the State relies may be considered by you as tending to prove the defendant's guilt, the State must prove that particular circumstance beyond a reasonable doubt."

The trial court's instruction is almost identical to the instruction approved in State v. Bauguess, 10 N.C.App. 524, 179 S.E.2d 5.

The applicable rule, with respect to the sufficiency of circumstantial evidence to *217 carry a case to the jury has been adequately recorded by Branch, J., citing Higgins, J., as follows:

"`We are advertent to the intimation in some of the decisions involving circumstantial evidence that to withstand a motion for nonsuit the circumstances must be inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt. We think the correct rule is given in State v. Simmons, 240 N.C. 780, 83 S.E.2d 904, 908, quoting from State v. Johnson, 199 N.C. 429, 154 S.E. 730: "If there be any evidence tending to prove the fact in issue or which reasonably conduces to its conclusion as a 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." The above is another way of saying there must be substantial evidence of all material elements to the offense to withstand the motion to dismiss. It is immaterial whether the substantial evidence is circumstantial or direct, or both. To hold that the court must grant a motion to dismiss unless, in the opinion of the court, the evidence excludes every reasonable hypothesis of innocence would in effect constitute the presiding judge the trier of facts. Substantial evidence of guilt is required before the court can send the case to the jury. Proof of guilt beyond a reasonable doubt is required before the jury can convict. What is substantial evidence is a question of law for the court. What that evidence proves or fails to prove is a question of fact for the jury. (Citing cases).'" State v. Parker, 268 N.C. 258, 150 S.E.2d 428.

Defendant's assignment of error is overruled.

For his last two assignments of error, the defendant argues that the trial court committed prejudicial and reversible error by inadequately charging the jury as to the meaning and definition of the "doctrine of recent possession" and of alibi evidence. Defendant's argument, however, seems to be directed to what he contends is the insufficiency of the evidence. At any rate, the instructions given were in substantial compliance with what has, heretofore, been held to be correct by the appellate courts of this State.

Defendant received a fair and impartial trial, free from prejudicial error.

Affirmed.

BRITT and ARNOLD, JJ., concur.