State v. Chapman

238 S.E.2d 784 (1977)

293 N.C. 585

STATE of North Carolina v. James CHAPMAN.

No. 58.

Supreme Court of North Carolina.

November 11, 1977.

*785 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Elisha H. Bunting, Jr., Raleigh, for the State.

Robert E. McCarter, Mooresville, for defendant.

COPELAND, Justice.

Defendant's principal assignment of error is the trial court's denial of his motion for nonsuit. In passing upon a motion for judgment of nonsuit, the court *786 must consider the evidence in the light most favorable to the State. State v. White, 293 N.C. 91, 235 S.E.2d 55 (1977). Thus, all conflicts in the evidence must be resolved in favor of the State and it must be given the benefit of every inference reasonably to be drawn in its favor. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971), cert. denied, 414 U.S. 874, 94 S. Ct. 157, 38 L. Ed. 2d 114 (1973).

The State's case here is based entirely on circumstantial evidence. Nonetheless, the test of sufficiency of the evidence to withstand nonsuit is the same whether the evidence is direct, circumstantial, or both. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). The question for the court in ruling on such a motion is whether a reasonable inference of defendant's guilt may be drawn from the circumstances; if so, the case must go to the jury for determination of whether these facts prove the defendant guilty beyond a reasonable doubt. State v. Rowland, 263 N.C. 353, 139 S.E.2d 661 (1965).

The State must establish two propositions in the prosecution of a criminal charge: (1) that a crime has been committed; and (2) that it was committed by the person charged. State v. Clyburn, 273 N.C. 284, 159 S.E.2d 868 (1968). The State's case here is defective primarily because it fails to show that the crime in question was committed by this defendant. While there was arguably evidence of motive in this case, motive alone is insufficient to carry a case to the jury. State v. Jarrell, 233 N.C. 741, 65 S.E.2d 304 (1951). Further, while defendant's possession of the shotgun bearing the fresh odor of powder, combined with the finding of the spent shell fired from defendant's gun in the alleyway, is certainly strong evidence, it is not adequate to support the double inference that: (1) the victim was shot with defendant's gun; and (2) defendant fired the shot. There was no proof as to: (1) the size of the shot which struck the victim; (2) the size of the shot fired from the spent shell; or (3) how recently the spent shell appeared to have been fired.

The most the State has shown is that the victim could have been shot by a shell fired from defendant's gun. There is nothing, other than an inference which could arise from mere ownership of the gun, that would tend to prove that defendant actually fired the shot. "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). Even when the State's evidence is enough to raise a strong suspicion, if it is insufficient to remove the case from the realm of conjecture, nonsuit must be allowed. State v. Chavis, 270 N.C. 306, 154 S.E.2d 340 (1967). For these reasons, we find that the trial court erred in denying defendant's motion for judgment of nonsuit; therefore, the decision appealed from is

REVERSED.