{ "id": 8601198, "name": "STATE v. JOHN BUSTER MURPHY and PATRICK SUTTON", "name_abbreviation": "State v. Murphy", "decision_date": "1945-04-11", "docket_number": "", "first_page": "115", "last_page": "117", "citations": [ { "type": "official", "cite": "225 N.C. 115" } ], "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": "224 N. C., 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606435 ], "opinion_index": 0, "case_paths": [ "/nc/224/0470-01" ] }, { "cite": "11 S. E., 168", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "106 N. C., 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652128 ], "opinion_index": 0, "case_paths": [ "/nc/106/0736-01" ] }, { "cite": "224 N. C., 347", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601788 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/224/0347-01" ] }, { "cite": "223 N. C., 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599098 ], "opinion_index": 0, "case_paths": [ "/nc/223/0079-01" ] }, { "cite": "154 S. E., 730", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N. C., 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603127 ], "opinion_index": 0, "case_paths": [ "/nc/199/0429-01" ] } ], "analysis": { "cardinality": 402, "char_count": 6747, "ocr_confidence": 0.488, "pagerank": { "raw": 1.7910697233616098e-07, "percentile": 0.7149994073013524 }, "sha256": "928a9ea095dd6dc27f489a8a1283eaf88786bcdc4e8b5cd3e3c9dd2fd4025e8d", "simhash": "1:bc2769fab6bd6c3d", "word_count": 1192 }, "last_updated": "2023-07-14T21:52:44.450219+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. JOHN BUSTER MURPHY and PATRICK SUTTON." ], "opinions": [ { "text": "Winborne, J.\nException to the refusal of the court to grant motions of defendants aptly made and preserved for judgment of nonsuit, G. S., 15-173, as to the charge of robbery, is well taken, and must be sustained. In considering such motions under provisions of G. S., 15-173, the general rule is that \u201cif there be any evidence 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.\u201d But where there is merely a suspicion or conjecture in regard to the charge in the bill of indictment against defendant, the motion for judgment of nonsuit will be allowed, S. v. Johnson, 199 N. C., 429, 154 S. E., 730, and numerous other decisions of this Court, including S. v. Boyd, 223 N. C., 79, 25 S. E. (2d), 456, where the authorities are assembled.\nApplying these principles to the present case, we are of opinion that the evidence discloses no more than an opportunity for the defendants to take the money. And the evidence shows an equal opportunity for others to have taken the money. Under such circumstances to find that any particular person took the money is to enter the realm of speculation, and verdicts so found may not stand.\nBut as to the count in the bill of indictment in the present case charging an assault, there is sufficient evidence to sustain a verdict of guilty. Here there is a general verdict of guilty. And where there is such a verdict on a bill of indictment containing two' or more counts charging distinct offenses, the court can impose a sentence on each count. That is, if the verdict on any count be free from valid objection and has evidence tending to support it, the conviction and sentence for that offense will be upheld. S. v. Graham,, 224 N. C., 347, 30 S. E. (2d), 154, and cases cited. However, the sentences imposed in the judgment below are greater than is allowed by law for a conviction for an assault. Hence, while there may not be a new trial, S. v. Toole, 106 N. C., 736, 11 S. E., 168, the sentences imposed will be set aside and the cause remanded for proper judgment. S. v. Graham, supra; S. v. Cody, 224 N. C., 470, 31 S. E. (2d), 445.\nOther assignments of error have been examined, and are found to be without merit.\nError and remanded.", "type": "majority", "author": "Winborne, J." } ], "attorneys": [ "Attorney-General McMullan and Assistant Attorneys-General Rhodes and Moody for the State.", "J. A. Jones and Albert W. Gowper for defendants, appellants." ], "corrections": "", "head_matter": "STATE v. JOHN BUSTER MURPHY and PATRICK SUTTON.\n(Filed 11 April, 1945.)\n1. Criminal Law \u00a7 521b\u2014\nThe general rule, on motion for judgment as of nonsuit in a criminal case, is that if there be any evidence to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, the case is one for the jury; but, where there is merely a suspicion or conjecture in regard to the charge against defendant, the motion should be allowed. G. S., 15-173.\n2. Criminal Law \u00a7\u00a7 521), 54b\u2014\nIn a criminal prosecution for assault and highway robbery, where there was sufficient evidence of assault, but as to robbery the evidence disclosed no more than an opportunity for defendants to take the money, with equal opportunity for others to have stolen it, a verdict on the highway robbery charge is speculative and not supported by the evidence.\n3. Criminal Law \u00a7\u00a7 54b, 60\u2014\nWhere there is a general verdict on a bill of indictment containing two or more counts charging distinct offenses, the court can impose a sentence on each count, if the verdict is free from valid objection and has evidence to support it.\n4. Criminal Law \u00a7\u00a7 60, 85\u2014\nWhen an indictment contains several counts as to offenses of different grades and punishments and the evidence applies to one or more counts but not to all, on a general verdict, judgment, in excess of the statutory penalty for the count or counts supported by the evidence, will be stricken out on appeal and the cause remanded for a proper judgment.\nAppeal by defendants from Williams, Jat October Term, 1944, of LENOIR.\nCriminal prosecution for assault and highway robbery.\nThe bill of indictment charges in substance that on 8 October, 1944, \u201con or near a public highway\u201d in Lenoir County, North Carolina, Patrick Sutton and John Buster Murphy did unlawfully, willfully and feloniously assault and put in fear \"Wiley Bell, and did feloniously, unlawfully and willfully and forcibly take, steal and carry away from the person of Wiley Bell eighty-two dollars in money \u2014 his property.\nIn the trial court the evidence offered, taken in light most favorable to the State, tends to show: That on Sunday afternoon of 8 October, 1944, prosecuting witness, Wiley Bell, while riding his bicycle on Davis Street in the city of Kinston, North Carolina, had his pocketbook containing four twenty-dollar bills and two one-dollar bills in his shirt pocket, and he was in his shirt sleeves; that his bicycle there ran into one of the defendants, Sutton, to whom Bell apologized, and who apparently accepted the apology, but the other defendant Murphy \u201ccommenced raising a lot of sand,\u201d and Bell asked him \u201cWhat are you going to do about it ?\u201d; that thereupon that defendant grabbed Bell by the neck and knocked him down, and defendant Sutton went down on him, or \u201cwas leaning over him\u201d as one witness expressed it; that when he, Sutton, \u201cgot up\u201d or \u201cgot up off of Wiley he said \u00a3I have got the gun,\u2019 \u201d and after he got up, he kicked Bell more than once; that then the defendants walked off leaving Bell lying in the street in an unconscious condition; that after they left there defendant Sutton had the pistol in his hand; that then two women came and picked Bell up and carried him to a near-by porch, where about ten minutes later he regained consciousness; that then he got on his bicycle and started home, and on the way discovered there was no money in his pocketbook, and no trace of it has been found.\nOn the other hand, defendants as witnesses for themselves deny taking the money, and offered evidence tending to show that while they struck Wiley Bell, and had him down, they did so in disarming him when he threatened them, and drew the gun on them.\nFor the State there was evidence tending to show that Wiley Bell did not own, and had no pistol at the time.\nThere was no evidence that anyone saw either of defendants with the pocketbook or saw either of them take the money.\nYerdict: Guilty.\nJudgment as to each defendant: Confinement in the State\u2019s Prison, assigned to work under the supervision of the State Highway and Public Works Commission for a period of not less than 4 nor more than 6 years.\nDefendants appeal to the Supreme Court and assign error.\nAttorney-General McMullan and Assistant Attorneys-General Rhodes and Moody for the State.\nJ. A. Jones and Albert W. Gowper for defendants, appellants." }, "file_name": "0115-01", "first_page_order": 163, "last_page_order": 165 }