State v. Tillman

152 S.E.2d 159 (1967)

269 N.C. 276

STATE of North Carolina v. James Hiram TILLMAN.

No. 835.

Supreme Court of North Carolina.

January 20, 1967.

*161 T. W. Bruton, Atty. Gen., Harrison Lewis, Deputy Atty. Gen., Charles M. Hensey, Trial Atty., Raleigh, for the State.

Fred Darlington, III, Burlington, for defendant.

SHARP, Justice:

This appeal presents only the question whether the State's evidence is sufficient to withstand the motions for nonsuit. The State's evidence is circumstantial, but the test of its sufficiency is the same whether the evidence be circumstantial, direct, or both. State v. Bogan, 266 N.C. 99, 145 S.E.2d 374. "[I]f there be any evidence *162 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." State v. Johnson, 199 N.C. 429, 431, 154 S.E. 730, 731. Accord, State v. Roux, 266 N.C. 555, 146 S.E.2d 654; State v. Stephens, 244 N.C. 380, 93 S.E.2d 431.

Defendant contends that the State's evidence discloses no more than an opportunity for the defendant to have taken the money and that it further reveals that others had an equal opportunity to have taken it. With this contention we cannot agree. Viewing the evidence in the light most favorable to the Stateas we are required to do in evaluating a motion for nonsuit, 1 Strong, N.C. Index, Criminal Law § 99it is clear that defendant and Overman spent a large part of the week before Friday September 3, in apparent idleness at the Cum-Park Plaza Shopping Center. They did no work there, but sat in an automobile or loitered in the vicinity of Byrd's and the Remnant Shop. The reasonable inference is that they were reconnoitering one or both of those places of business, probably Byrd's since Overman was seen at least twice inside that store. Their actions aroused the suspicions of Joe Cole, a former sheriff of the county, who knew them both, and he mentioned their activities to Young, the administrative assistant to one of the owners of the shopping center. Undoubtedly, Cole thought that the two men were "casing the joint." On Friday at noon, Young went with a policeman into Byrd'sfor what purpose the record does not specifically statebut their presence coincided with Overman's and defendant Tillman's, whom they encountered in that part of the store which was clearly posted for "Employees Only." At a time when the manager was out to lunch, defendant Tillman was inside the office from which the money was taken. At the same time, Overman was seen 2-3 feet from the stairs going toward the double doors.

Defendant had no legitimate business in the office. Those who did, had access to a key. Someone who had no key had evidently used a knife to jimmy the lock to obtain entrance. If that person were one other than defendant, the record does not suggest it. When defendant opened the door at Taylor's knock, he opened it only 6-8 inches wide and closed it as soon as he had answered Taylor's question.

After a week of loitering in the shopping center, defendant's unauthorized presence in the office where the money was on the day the money disappeared permits the logical inference that he is the thief who broke into and entered the office. To quote Lord Byron: "A `strange coincidence,' to use a phrase. * * *"

No error.