State v. WhiteAnnotate this Case
235 S.E.2d 55 (1977)
293 N.C. 91
STATE of North Carolina v. Elbanks WHITE.
Supreme Court of North Carolina.
June 13, 1977.
*58 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.
Max F. Ferree and William C. Gray, Jr., Wilkesboro, for defendant.
The only serious question raised by this appeal is whether the court was correct in denying defendant's motion for judgment as of nonsuit. The answer to this question depends upon whether there is substantial evidence to support a finding that the defendant was the perpetrator of the crime, it being conceded that there is substantial evidence that the crime charged was committed. We believe the evidence raises a strong suspicion as to defendant's guilt, but that it is not sufficient to remove the case from the realm of surmise and conjecture. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967); State v. Bass, 253 N.C. 318, 116 S.E.2d 772 (1960).
It is elementary that, upon a motion for judgment as of nonsuit in a criminal case, the evidence must be considered by the court in the light most favorable to the State. Where there are contradictions and discrepancies in the evidence, these must be resolved in the State's favor and the State must be given the benefit of every reasonable inference arising on the evidence. State v. Sellers, 289 N.C. 268, 221 S.E.2d 264 (1976); State v. Bush, 289 N.C. 159, 221 S.E.2d 333 (1976); State v. Cutler, supra.
The case against this defendant is based entirely upon circumstantial evidence. The test of the sufficiency of the evidence to withstand a nonsuit motion is the same whether the evidence is circumstantial, direct or both. State v. Thompson, 256 N.C. 593, 124 S.E.2d 728 (1962); State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956)."When the motion for nonsuit calls into question 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. If so, it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty." State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965); accord, State v. Cutler, supra.
In searching our reports of the many cases that recite the above principals of law, we find that it is much easier to state the rule than to apply it. Each case turns on its own peculiar facts and a decision in one case is rarely controlling in another. However, in State v. Cutler, supra, we find a case with facts strikingly similar to those of the instant case. If anything, the State presented a stronger case against the defendant in Cutler and in that case we held that the motion for nonsuit should have been allowed.
In Cutler, the State's evidence tended to show that the deceased was found in his home stabbed through the heart, lying in a pool of blood. Blood was found throughout the house and inside the defendant's abandoned pickup truck parked nearby. The defendant was seen driving his truck up the lane to the deceased's house on the morning of the murder. Later the same morning, the defendant appeared at the home of his uncle intoxicated and "bloody as a hog." The defendant had a bad gash on his head. The defendant's knife blade was bloody and a hair stuck in the blood on the knife was similar to the chest hair of the deceased. An expert testified that the blood under the deceased's body and the blood inside the defendant's truck came from different persons. The blood on the defendant's clothing was identified as the same type as that taken from the truck. The blood on the knife was human blood but could not be *59 typed. The defendant told his uncle that "Joe [the deceased] had killed himself." Defendant was taken by a neighbor to the hospital and, en route, told the neighbor he "would rather get a pint of liquor and go back and see how Joe was than go to the doctor." Upon these facts, Justice Lake, speaking for our Court in Cutler, found the evidence was not sufficient to defeat the motion for nonsuit although the evidence established that the defendant had an opportunity to commit the crime charged.
The evidence for the State in the case at bar was deficient in the following respects: (1) Garcia could not identify the man he saw leaving deceased's mobile home probably because of the distance (200-250 feet) and darkness (1½ hours after sunset). See State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967); (2) other black men were staying at the motel; (3) no evidence was presented that the defendant owned the murder weapon; (4) no fingerprints were found on the knife; (5) no evidence was introduced of any blood found on the defendant's pants; (6) about fifteen percent of the population has the type of blood found on the left shoe of the defendant; (7) the type of blood on the right shoe is found in thirty percent of the population; (8) the blood specks on the tee shirt, and the blood on the carpet were not identified by type or otherwise; (9) no motive was established for the crime; (10) no flight was attempted by the defendant.
The State has shown that the defendant was in the general vicinity of the deceased's home at the time of the murder and that he made several arguably contradictory statements during the course of the police investigation. It may even reasonably be inferred that the defendant was at the home of the deceased when the deceased came to her death, or shortly thereafter. Thus, the State has established that the defendant had an opportunity to commit the crime charged. State v. Cutler, supra. "Beyond that we must sail in a sea of conjecture and surmise. This we are not permitted to do." State v. Minor, 290 N.C. 68, 75, 224 S.E.2d 180, 185 (1976); accord, State v. Finney, 290 N.C. 755, 228 S.E.2d 433 (1976). Judge Seay should have allowed the motion for judgment as of nonsuit and his judgment is consequently