State v. Jacobs

171 S.E.2d 21 (1969)

6 N.C. App. 751

STATE of North Carolina v. Nathaniel JACOBS.

No. 6910SC542.

Court of Appeals of North Carolina.

December 17, 1969.

*22 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

L. Bruce Gunter, Fuquay Varina, for defendant appellant.

MORRIS, Judge.

Defendant's first exception was to the introduction of the pair of pants into evidence. He contends that the pants which were allegedly worn on the occasion of the break-in were not sufficiently identified and should not have been admitted into evidence. We think there is sufficient testimony in the record to warrant admission of the pants into evidence. The defendant's grandmother testified in response to the solicitor's questions as follows:

"Q. Listen to my question. Did you put the pants that he was wearing that night when he came home in soak the next morning? A. I put them there in there. I reckon it was the ones he had on." "Q. Did you put the pair of pants he was wearing that night in soak the next morning? A. I told you that I dropped them in the bath tub and run water on them. Q. Was that the pair of pants that Nathaniel Jacobs was wearing when he came home that night? A. No sir. I didn't ask him. I just dropped them in the tub and run water over them. That is all I done to them. Q. To what? Did that to what pair of pants? A. Them there. *23 Q. These that I have right here? A. Yes, sir. Q. Well, was that the pair that Nathaniel Jacobs was wearing when he came home that night? A. I don't know. I reckon so." "Q. And you say that they were his pants that he was wearing that night, didn't you? A. I reckon they were. I won't over there when it happened. I don't know nothing about what happened."

She also testified that she told a police officer that "they were Nathaniel Jacobs' pants, * * *"

Police Officer J. H. Bowers testified that defendant's "grandmother gave me the pants Saturday evening about 3:00 o'clock, and I picked up a bloody spread at the same time. The pants were in substantially the same condition when I got them as they are now. They have been in my locker since I have had them."

This testimony provides some evidence that the pants are what they are purported to be and objections to its sufficiency goes to the weight to be given the testimony rather than to the admissibility of the pants into evidence. 22A C.J.S. Criminal Law § 709, pp. 949-951. The weight to be given the testimony and the credibility of the witnesses are for the jury. 2 Strong, N.C. Index 2d, Criminal Law, § 103.

Defendant's second exception is to the court's refusal to strike the testimony of the SBI chemical specialist relating to blood samples taken from the scene of the crime and from the defendant. The witness testified that both blood samples demonstrated the A blood grouping factor but that he "could not make a test to determine whether or not the blood in the scrapings was some of the same blood or from the same person as the blood from" the defendant and that he did not know whether the two samples came from the same person. There is respectable authority that such testimony relating to blood test results may be admitted into evidence. 46 A.L.R.2d 1000; McCormick on Evidence, § 177 (1954); 29 Am. Jur.2d, Evidence, § 106.

In State v. Peele, 274 N.C. 106, 161 S.E.2d 568 (1968), cert. denied, 393 U.S. 1042, 89 S. Ct. 669, 21 L. Ed. 2d 590 (1969), the defendant's bloodstained clothing was held to be properly admitted into evidence after chemical analysis had disclosed that the stains on the clothing were made by human blood of the same type as the victim's blood. In the Peele case the question was whether defendant's bloodstained clothing was admissible into evidence after chemical analysis was performed, whereas in the case at bar the question is whether the testimony itself is admissible. Also, in the Peele case the comparison was made between blood found on defendant's clothing and the blood of the victim, whereas in the case at bar the comparison was made between the blood taken from the scene of the crime and the blood of the defendant. We hold that the testimony relating to the blood grouping tests was admissible.

Defendant's third exception is to the court's refusal to dismiss the case at the close of the evidence. In State v. Colson, 1 N.C.App. 339, 161 S.E.2d 637 (1968), cert. denied, 393 U.S. 1087, 89 S. Ct. 876, 21 L. Ed. 2d 780 (1969), it was said:

"[H]owever, to withstand a motion of nonsuit in a criminal case, it is not required that the evidence exclude every reasonable hypothesis other than that of defendant's guilt. It is required that there be substantial evidence of all material elements of the offense, and it is immaterial whether the substantial evidence is circumstantial or direct or both. As was said by Higgins, J., in State v. Stephens, 244 N.C. 380, 93 S.E.2d 431: `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 *24 the trier of the 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.'"

In this case there was enough evidence of the material elements of the crime to submit the case to the jury.

Affirmed.

MALLARD, C. J., and HEDRICK, J., concur.