{ "id": 8617074, "name": "STATE v. WILBUR McLEOD", "name_abbreviation": "State v. McLeod", "decision_date": "1930-04-30", "docket_number": "", "first_page": "649", "last_page": "655", "citations": [ { "type": "official", "cite": "198 N.C. 649" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "86 N. C., 660", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "11 S. E., 284", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "106 N. C., 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652036 ], "opinion_index": 0, "case_paths": [ "/nc/106/0701-01" ] }, { "cite": "12 S. E., 329", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "107 N. C., 798", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275036 ], "opinion_index": 0, "case_paths": [ "/nc/107/0798-01" ] }, { "cite": "15 S. E., 1038", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "111 N. C., 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651974 ], "opinion_index": 0, "case_paths": [ "/nc/111/0647-01" ] }, { "cite": "141 S. E., 285", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "195 N. C., 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627536 ], "opinion_index": 0, "case_paths": [ "/nc/195/0020-01" ] }, { "cite": "130 S. E., 720", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N. C., 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613196 ], "opinion_index": 0, "case_paths": [ "/nc/190/0708-01" ] }, { "cite": "110 S. E., 846", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "183 N. C., 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658756 ], "opinion_index": 0, "case_paths": [ "/nc/183/0738-01" ] }, { "cite": "66 N. C., 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276643 ], "opinion_index": 0, "case_paths": [ "/nc/66/0106-01" ] }, { "cite": "126 N. C., 997", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8663535 ], "opinion_index": 0, "case_paths": [ "/nc/126/0997-01" ] }, { "cite": "116 N. C., 976", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655948 ], "opinion_index": 0, "case_paths": [ "/nc/116/0976-01" ] }, { "cite": "169 N. C., 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658786 ], "opinion_index": 0, "case_paths": [ "/nc/169/0318-01" ] }, { "cite": "166 N. C., 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269747 ], "opinion_index": 0, "case_paths": [ "/nc/166/0371-01" ] }, { "cite": "127 N. C., 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662512 ], "opinion_index": 0, "case_paths": [ "/nc/127/0566-01" ] }, { "cite": "149 N. C., 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271339 ], "opinion_index": 0, "case_paths": [ "/nc/149/0527-01" ] }, { "cite": "145 N. C., 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253812 ], "opinion_index": 0, "case_paths": [ "/nc/145/0481-01" ] }, { "cite": "89 S. E., 30", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "171 N. C., 818", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272543 ], "opinion_index": 0, "case_paths": [ "/nc/171/0818-01" ] }, { "cite": "144 S. E., 518", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 N. C., 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623692 ], "opinion_index": 0, "case_paths": [ "/nc/196/0050-01" ] }, { "cite": "109 S. E., 644", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "182 N. C., 899", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659505 ], "opinion_index": 0, "case_paths": [ "/nc/182/0899-01" ] }, { "cite": "63 N. C., 335", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277347 ], "opinion_index": 0, "case_paths": [ "/nc/63/0335-01" ] }, { "cite": "39 S. E., 629", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "129 N. C., 502", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661554 ], "opinion_index": 0, "case_paths": [ "/nc/129/0502-01" ] }, { "cite": "89 N. C., 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683375 ], "opinion_index": 0, "case_paths": [ "/nc/89/0462-01" ] }, { "cite": "89 S. E., 804", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "172 N. C., 879", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11256163 ], "opinion_index": 0, "case_paths": [ "/nc/172/0879-01" ] }, { "cite": "97 S. E., 155", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "176 N. C., 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658071 ], "opinion_index": 0, "case_paths": [ "/nc/176/0709-01" ] }, { "cite": "31 A. L. R., 204", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "74 N. C., 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683295 ], "opinion_index": 0, "case_paths": [ "/nc/74/0646-01" ] }, { "cite": "83 N. C., 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278956 ], "opinion_index": 0, "case_paths": [ "/nc/83/0634-01" ] }, { "cite": "84 N. C., 756", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698749 ], "opinion_index": 0, "case_paths": [ "/nc/84/0756-01" ] }, { "cite": "46 S. E., 743", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "134 N. C., 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273821 ], "opinion_index": 0, "case_paths": [ "/nc/134/0641-01" ] }, { "cite": "50 S. E., 765", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "138 N. C., 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270300 ], "opinion_index": 0, "case_paths": [ "/nc/138/0688-01" ] }, { "cite": "56 S. E., 547", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "143 N. C., 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658483 ], "opinion_index": 0, "case_paths": [ "/nc/143/0607-01" ] }, { "cite": "60 S. E., 986", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "146 N. C., 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272226 ], "opinion_index": 0, "case_paths": [ "/nc/146/0615-01" ] }, { "cite": "92 S. E., 597", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "173 N. C., 808", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272544 ], "opinion_index": 0, "case_paths": [ "/nc/173/0808-01" ] }, { "cite": "97 S. E., 716", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "177 N. C., 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653810 ], "opinion_index": 0, "case_paths": [ "/nc/177/0120-01" ] }, { "cite": "87 S. E., 62", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "170 N. C., 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662372 ], "opinion_index": 0, "case_paths": [ "/nc/170/0730-01" ] }, { "cite": "69 S. E., 269", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "153 N. C., 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273610 ], "opinion_index": 0, "case_paths": [ "/nc/153/0630-01" ] }, { "cite": "44 S. E., 625", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "132 N. C., 1120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8663019 ], "opinion_index": 0, "case_paths": [ "/nc/132/1120-01" ] }, { "cite": "74 S. E., 914", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "159 N. C., 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659384 ], "opinion_index": 0, "case_paths": [ "/nc/159/0465-01" ] }, { "cite": "77 S. E., 302", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "162 N. C., 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272001 ], "opinion_index": 0, "case_paths": [ "/nc/162/0542-01" ] }, { "cite": "95 S. E., 101", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "175 N. C., 777", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662642 ], "opinion_index": 0, "case_paths": [ "/nc/175/0777-01" ] }, { "cite": "117 S. E., 586", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "185 N. C., 756", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658061 ], "opinion_index": 0, "case_paths": [ "/nc/185/0756-01" ] }, { "cite": "122 S. E., 667", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "187 N. C., 698", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654815 ], "opinion_index": 0, "case_paths": [ "/nc/187/0698-01" ] }, { "cite": "122 S. E., 17", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "187 N. C., 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654132 ], "opinion_index": 0, "case_paths": [ "/nc/187/0481-01" ] }, { "cite": "146 S. E., 395", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 N. C., 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628339 ], "opinion_index": 0, "case_paths": [ "/nc/196/0562-01" ] }, { "cite": "197 N. C., 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630469 ], "opinion_index": 0, "case_paths": [ "/nc/197/0576-01" ] }, { "cite": "197 N. C., 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631116 ], "opinion_index": 0, "case_paths": [ "/nc/197/0684-01" ] }, { "cite": "196 N. C., 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628150 ], "opinion_index": 0, "case_paths": [ "/nc/196/0542-01" ] }, { "cite": "196 N. C., 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628150 ], "opinion_index": 1, "case_paths": [ "/nc/196/0542-01" ] } ], "analysis": { "cardinality": 840, "char_count": 17565, "ocr_confidence": 0.452, "pagerank": { "raw": 3.56279326145805e-07, "percentile": 0.8858877486679725 }, "sha256": "c7ecb00d5c0cbca9ca43029f4119ab872596a8eeb24226459c74b98647792fab", "simhash": "1:aef2aeb79e3fc1ef", "word_count": 3193 }, "last_updated": "2023-07-14T19:53:28.956258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. WILBUR McLEOD." ], "opinions": [ { "text": "Stacy, 0. J.,\nafter stating the case: The only question presented is the sufficiency of the evidence to warrant the verdict. It is stronger on the present record than it was on the first appeal, 196 N. C., 542. And it would seem that the evidence in the instant case is fully as strong as that which was submitted to the jury in the following cases: S. v. Allen, 197 N. C., 684; S. v. McKinnon, 197 N. C., 576; S. v. Lawrence, 196 N. C., 562, 146 S. E., 395; S. v. Melton, 187 N. C., 481, 122 S. E., 17; S. v. Young, 187 N. C., 698, 122 S. E., 667; S. v. Griffith, 185 N. C., 756, 117 S. E., 586; S. v. Bynum, 175 N. C., 777, 95 S. E., 101; S. v. Matthews, 162 N. C., 542, 77 S. E., 302; S. v. Taylor, 159 N. C., 465, 74 S. E., 914; S. v. Wilcox, 132 N. C., 1120, 44 S. E., 625.\nTrue, tbe evidence is circumstantial, but circumstantial evidence is, not only a recognized and accepted instrumentality in tbe ascertainment of truth, but in many cases quite essential to its establishment. S. v. Plyler, 153 N. C., 630, 69 S. E., 269.\nTbe evidence as to tbe identity of tbe tracks was competent. S. v. Lowry, 170 N. C., 730, 87 S. E., 62. Indeed, it may be stated as a general rule that tbe correspondence of tracks, footprints, or ground marks, found in connection with a crime, with tbe track, footprint, or shoe mark of one accused of tbe crime, or with tbe track, footprint, or shoe mark of bis horse, or with tbe track, tread, or wheel mark of bis wagon, buggy, or automobile, is admissible in evidence as tending to identify tbe accused as tbe perpetrator of tbe crime, tbe probative value of such evidence, of course, depending upon tbe attendant circumstances. S. v. Young, supra; S. v. Griffith, supra; S. v. Taylor, supra; S. v. Fain, 177 N. C., 120, 97 S. E., 716; S. v. Martin, 173 N. C., 808, 92 S. E., 597; S. v. Freeman, 146 N. C., 615, 60 S. E., 986; S. v. Hunter, 143 N. C., 607, 56 S. E., 547; S. v. Adams, 138 N. C., 688, 50 S. E., 765; S. v. Daniels, 134 N. C., 641, 46 S. E., 743; S. v. Morris, 84 N. C., 756; S. v. Reitz, 83 N. C., 634; S. v. Graham, 74 N. C., 646; Annotation: 31 A. L. R., 204.\nSpeaking to tbe subject in S. v. Spencer, 176 N. C., 709, 97 S. E., 155, Walker, J., delivering tbe opinion of tbe Court, said: \u201cThe testimony as to tbe fitting of tbe shoe to tracks found where tbe prisoner bad been seen was admissible, as it was a circumstance tending to show identity. . . . This is \u2018real\u2019 evidence, as called by tbe civilians, and its value as proof is greater or less, according to tbe circumstances. . . . It is some evidence tending to identify tbe prisoner as tbe perpetrator of tbe crime.\u201d\nIt is sometimes difficult to distinguish between evidence sufficient to carry a case to tbe jury, and a mere scintilla, which only raises a suspicion or possibility of tbe fact in issue. S. v. Bridgers, 172 N. C., 879, 89 S. E., 804; S. v. White, 89 N. C., 462. And it may be readily conceded that this is one of tbe border-line cases. But viewing tbe evidence in its most favorable light for tbe State, tbe accepted position on a demurrer or motion to nonsuit, we are of opinion that it is of sufficient probative value to warrant its submission to tbe jury. S. v. Vaughn, 129 N. C., 502, 39 S. E., 629.\nTbe general rule is, that, if there be any evidence tending to prove tbe 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; otherwise not, for short of this, the judge should direct a non-suit or an acquittal in a criminal prosecution. S. v. Vinson, 63 N. C., 335. But if the evidence warrant a reasonable inference of the fact in issue, it is for the jury to say whether they are convinced beyond a reasonable doubt of such fact, the fact of guilt. S. v. Blackwelder, 182 N. C., 899, 109 S. E., 644.\nThe function of the court when considering a motion to nonsuit, is, not to pass upon the-weight of the evidence, but to determine its sufficiency to support the verdict. S. v. King, 196 N. C., 50, 144 S. E., 518. Or as said in S. v. Carlson, 171 N. C., 818, 89 S. E., 30; \u201cThe motion to nonsuit requires that we should ascertain merely whether there is any evidence to sustain the allegations of the indictment. The same rule applies as in civil cases, and the evidence must receive the m\u2019ost favorable construction in favor of the State for the purpose of determining its legal sufficiency to convict, leaving its weight to be passed upon by the jury. S. v. Carmon, 145 N. C., 481; S. v. Walker, 149 N. C., 527; S. v. Costner, 127 N. C., 566. The effect of Laws 1913, ch. 73, allowing a motion for nonsuit in a criminal ease, was considered in S. v. Moore, 166 N. C., 371, S. v. Gibson, 169 N. C., 318. Where the question is whether there is evidence sufficient to warrant a verdict, this Court considers only the testimony favorable to the State, if there is any, discarding that of the prisoner. S. v. Hart, 116 N. C., 976. The weight of the evidence and the credibility of the witnesses are matters for the jury to pass upon. S. v. Utley, 126 N. C., 997.\u201d\nThe accepted rule, it is true, is that, in cases where the State relies upon circumstantial evidence for a conviction, the circumstances and evidence must be such as to produce in the minds of the jurors a moral certainty of the defendant\u2019s guilt and to exclude any other reasonable hypothesis. S. v. Matthews, 66 N. C., 106; S. v. Melton, supra. Here, the incriminating evidence, taken in its entirety, if accepted and believed by the jury, would seem to be sufficient to warrant the verdict. S. v. McLeod, supra. This is as far as we are permitted to go in considering the defendant\u2019s demurrer to the evidence or motion for judgment as in case of nonsuit under C. S., 4643.\nThe fact that the defendant offered no evidence, but relied upon the legal presumption of innocence and the weakness of the State\u2019s case, is not to be taken against him. C. S., 1799. The presumption of innocence which surrounds a defendant on his plea of \u201cnot guilty,\u201d goes with him throughout the trial and is not overcome by his failure to testify in his own behalf. He is not required to show his innocence. The burden is on the State to prove his guilt beyond a reasonable doubt. S. v. Singleton, 183 N. C., 738, 110 S. E., 846. And while his absence from the witness stand or his failure to testify, may be a circumstance not without its moral effect upon the jury, of which every lawyer appearing for a defendant is always conscious, yet this fact, as a matter of law, creates no presumption against him, and is not a proper subject for comment by the solicitor in arguing the case to the jury. S. v. Tucker, 190 N. C., 708, 130 S. E., 720.\nThe rulings in S. v. Montague, 195 N. C., 20, 141 S. E., 285, S. v. Rhodes, 111 N. C., 647, 15 S. E., 1038, S. v. Goodson, 107 N. C., 798, 12 S. E., 329, S. v. Brackville, 106 N. C., 701, 11 S. E., 284, and S. v. Massey, 86 N. C., 660, are distinguishable, as they were based upon facts essentially different from those appearing on the present record.\nA searching scrutiny of the record leaves us with the impression that the case was properly submitted to the jury.\nNo error.", "type": "majority", "author": "Stacy, 0. J.," }, { "text": "Bbogden, J\\,\ndissenting: I dissented in the former appeal reported in 196 N. C., 542, for the reason that the evidence \u201cwas vague, uncertain and inconclusive-as to the vital fact of guilt.\u201d\nThe evidence in the present case is no stronger than that produced at the former hearing.\nThe only evidence of identity having any probative value at all, is certain tracks found at a distance of 110 or 150 yards from the body. None were found nearer than that.\nThe defendant lived within a mile or a mile and a quarter of the deceased and had lived there all his life. The purported tracks were traced four or five miles beyond the defendant\u2019s house and then doubled back, making in the aggregate a distance of eight or nine miles. The murder was committed about 11:00 or 11:30 at night, and the officers arrived at the home of the defendant about 4:00 in the morning, and he was in bed. At the former hearing, bloodhounds had followed these tracks over the long and circuitous route testified to. When the hounds arrived at the home of the defendant they stopped within thirty feet of the house, and when the defendant was brought out the dogs \u201cdid not bay or indicate him in any way.\u201d The Court held that the dog evidence was incompetent and a new trial was awarded. In this appeal the witnesses followed the same route the dogs followed in the former appeal. Hence the same evidence is still here, with the dogs left out. The practical result is that the defendant is perhaps convicted upon evidence that the Court has already held to be incompetent and inadmissible.\nMoreover, the tracks found in the potato-patch about 150 yards from the body were ordinary tracks made by a broad-toed number 8 shoe. Some of the witnesses at the trial were wearing broad-toed number 8 shoes, although they testified that they did not make the tracks. The sheriff testified that \u201cany shoe of that make and style would have made the same kind of track.\u201d\nThe defendant sat up with a sick baby of the witness Campbell on Tuesday night preceding the murder on the following Monday. Campbell\u2019s house is near the potato-patch referred to, where the tracks were found. There is no evidence that the tracks were fresh or that they were not there before the murder was committed.\nReviewing the entire record, I am of the opinion that the evidence is too thin and too scant to justify the taking of life.", "type": "dissent", "author": "Bbogden, J\\," } ], "attorneys": [ "Attorney-General Brummitt and Assistant Attorney-General Nash for the State.", "Young & Young for defendant." ], "corrections": "", "head_matter": "STATE v. WILBUR McLEOD.\n(Filed 30 April, 1930.)\n1. Homicide G a \u2014 Circumstantial evidence of guilt of murder in first degree held sufficient to be submitted to the jury.\nEvidence tending to show that the deceased was ravished by some one suffering from gonorrhea, and that she died from the assault and choking, with further evidence that the defendant had the disease, and that, while searching for the deceased, witnesses heard some one run away from the direction where the body was found, and that tracks, incapable of identification, were found at the scene of the crime, and that clear, distinct tracks were found nearby corresponding in every particular with the shoes of the defendant, including peculiar marks of the rubber heels, and that the tracks led to the house where the defendant lived, with further evidence that the defendant was familiar with the premises and that he was in the immediate vicinity of the crime on Thursday preceding the homicide on Tuesday in contradiction of his testimony that he had not been in the neighborhood for a period of two weeks, is sufficient to take the case to the jury and to sustain their verdict of guilty of murder in the first degree, and defendant\u2019s motion as of nonsuit, O. S., 4643, was properly overruled.\n2. Criminal Law G n \u2014 Circumstantial evidence is often an essential instrumentality in the ascertainment of truth.\nCircumstantial evidence is not only a recognized and accepted instrumentality in the ascertainment of truth, but in many cases is quite essential to its establishment.\n3. Criminal Law G p \u2014 Testimony of similarity between shoes of defendant and tracks found near scene of crime held competent.\nWhere foot tracks found in connection with a crime correspond in every particular with the shoes of the defendant, including a peculiar mark on the rubber heels, evidence of such similarity is competent as tending to identify the accused as the perpetrator of the crime, the probative value of such evidence depending upon the attendant circumstances.\n4. Criminal Law G m \u2014 Sufficiency of evidence of guilt to be submitted to the jury.\nIn cases where the State relies upon circumstantial evidence for a conviction, the circumstances and evidence must be such as to produce in the minds of the jurors a moral certainty of the defendant\u2019s guilt and to exclude any other reasonable hypothesis, but the evidence should be submitted to them if there is 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 only .a suspicion or conjecture, and it is for the jury to say whether they are convinced from the evidence of the defendant\u2019s guilt beyond a reasonable doubt.\n5. Criminal Law I j \u2014 Upon motion as of nonsuit the evidence will be considered in the light most favorable to the State.\nThe function of the court when considering a motion to nonsuit is to determine the sufficiency of the evidence to support the verdict, it being the province of the jury to pass upon the weight and credibility of the evidence, and where the evidence viewed in the light most favorable to the State is sufficient to sustain a verdict of guilty, the defendant\u2019s motion as of nonsuit should be denied. C. S., 4643.\n6. Criminal Law G a \u2014 Where the defendant introduces no evidence the question of guilt is for the jury under the presumption of innocence.\nA defendant in a criminal prosecution may rely upon the presumption of his innocence, which remains with him throughout the trial, and introduce no evidence in his own behalf, and though this may have its moral effect on the jury, it does not of itself create a presumption against him as a matter of law, and the question of his guilt is for the determination of the jury under the evidence, with the burden upon the State to prove him guilty beyond a reasonable doubt. C. S., 1799.\nBkogden, X, dissenting.\nAppeal by defendant from Mictyette, J., at May Term, 1929, of Lee.\nCriminal prosecution tried upon an indictment charging the prisoner with the murder of one Rebecca Matthews.\nThe evidence on behalf of the State tends to show that on the night of 21 March, 1928, about 11 p.m., Mrs. Rebecca Matthews, a woman 17 or 78 years of age, was dragged from her home a distance of thirty yards to the edge of a field where she was found dead soon after midnight, having been brutally assaulted, choked, manhandled, bruised and ravished by some one with gonorrhea, such as the prisoner had. She died from the assault, shock and choking.\nThe first witnesses who came to the aid of the 80-year-old husband, himself quite feeble and senile, in searching for his missing wife, heard some one run away from the direction of where the body was found. Toe prints were discovered at the feet of the deceased, apparently made by No. 8 square-toed shoes, such as the defendant wore. Signs of tracks could be seen, but not identified because of the character of the ground, going from the body to a potato patch, a distance of approximately 75 or 100 yards, but here the ground was soft and the tracks became quite distinct and clear. Similar tracks were identified at a number of places along a tortuous course, apparently taken by the murderer, which led to the home of William McLeod, father of the defendant, where the prisoner also lived and was found in bed about 3 or 4 o\u2019clock in the early morning of 28 March, 1928. The shoes which Wilbur McLeod had at that- time were freshly polished and corresponded in every particular with the identification made by the measurements and by placing the shoes in a number of the tracks. The prisoner\u2019s shoes measured 11% inches in length. The sole on the right shoe was 6 inches long, while that on the left measured 6% inches. They were both 4% inches in width. The distance from heel to sole on the left shoe was 2 inches, and .the distance from heel to sole on the right shoe was 2% inches. The tracks on tbe ground showed these identical measurements. They also showed the imprint of rubber heels with peculiar marks, similar to those on the prisoner\u2019s shoes. The identification of the tracks as having been made by the defendant\u2019s shoes was quite complete.\nWhen arrested, the defendant first told the officers that he had been over to see his aunt that night and had returned about 12 o\u2019clock. Later he said he was in by 11 o\u2019clock; that he slept with his father and that his father was in bed when he came in. The prisoner was then asked where he was from 9 o\u2019clock until he got home. His reply was: \u201cI might have been in earlier than that.\u201d The defendant\u2019s father, on being asked what time his son came in that night, said: \u201cI went to bed at 9 o\u2019clock and he was in bed then.\u201d The defendant started to say something, but the officer told him to \u201ckeep quiet.\u201d He was nervous and tears came in his eyes.\nThe prisoner was the only person in William McLeod\u2019s house whose shoes could have made the tracks in question. It was also found that he alone of the three negro men in said house who were arrested and examined, was suffering from the particular venereal disease, evidence of which was left on the body of the deceased by the person who raped her.\nIt was further in evidence that the defendant was familiar with the premises and knew the deceased and her husband. He claimed not to have been in that neighborhood for two weeks prior to the killing, but the State\u2019s evidence showed that he was in the immediate vicinity on Thursday preceding the homicide on Tuesday.\nThe defendant offered no evidence, but lodged a motion at the close of the State\u2019s case for judgment as of nonsuit under O. S., 4643. Overruled and exception.\nVerdict: Guilty of murder in the first degree.\nJudgment: Death by electrocution.\nThe prisoner appeals, assigning errors.\nAttorney-General Brummitt and Assistant Attorney-General Nash for the State.\nYoung & Young for defendant." }, "file_name": "0649-01", "first_page_order": 719, "last_page_order": 725 }