#### STATE v. EUGENE WARREN and ODELL BROWN.

(Filed 8 October, 1947.)

1. Larceny § 7—

In a prosecution for larceny and receiving, evidence that a defendant, with, another, was in the company of the prosecuting witness in a field where the three drank liquor, that thereafter the prosecuting witness went to sleep and that when he awoke a large sum of money which he had on his person was gone, with further evidence that defendant’s shoe tracks led from the place where prosecuting witness slept and that a sum of money somewhat less than the amount the prosecuting witness had lost, but in the same denominations, was found in defendant’s house and that a paper which had been in the prosecuting witness’ billfold was found on his premises, is held sufficient to overrule defendant’s motion to nonsuit.

2. Same—

In a prosecution for larceny and receiving, evidence tending only to show that a defendant was in the company of the prosecuting witness on the night prior to the time the money was stolen, and that after defendant had been jailed he was told that all he would have to do to get out of trouble would be to give the prosecuting witness so much money, to . which defendant replied “go get my daddy and B,” the prosecuting witness, is held insufficient to be submitted to the jury.

3. Criminal Law § 31e—

Testimony that when arrested defendant had shoes worn so as to make . a peculiar mark on the ground and that these shoes fitted the tracks at the scene of the crime, is competent.

4. Ox’iminal Law § 53e—

In the absence of a request, it is not error for the court to fail to define circumstantial evidence and to instruct the jury how to evaluate such evidence, the general charge as to the burden and quantum of proof required being without error.

*235. Same: Criminal Law § 52a-—

The intensity of proof required of the State, whether relying on circumstantial or direct evidence, is to prove defendant’s guilt to a moral certainty or beyond a reasonable doubt, but when aptly requested to do so, the court must charge that circumstantial evidence must produce in the minds of the jurors a moral certainty of defendant’s guilt and exclude every other reasonable hypothesis.

Appeal by defendants from Clement, J., at August Term, 1947, of "Wilkes.

Criminal prosecution tried upon indictment charging larceny and receiving from tbe person.

Tbe State offered evidence tending to sbow tbat on tbe evening of 15 July, 1946, Eoby Broyhill bad $1,700.00, twenty $50.00 bills, one $100.00 bill, and thirty $20.00 bills, and a paper with some figures on it, in a billfold in bis pocket. He bad been hauling beans to some point in Tennessee and got home at 6 :00 or 7:00 p.m. Later be went to a store near tbe Town of North Wilkesboro. He left this store around 11:00 o’clock. He then went to Clarence Benton’s place. Tbe defendants and others were there. About an hour and a half later Broyhill started home. He was overtaken by these defendants. Broyhill and the defendants left the highway a distance of about 125 feet and all three of them took a drink of liquor. They sat down and talked. Later they walked into a cornfield some 500 feet from the highway where they sat down and all ‘three of them took another drink. Broyhill went to sleep. Next morning he discovered his money was gone. Brown’s shoe tracks were identified, leading from the place where Broyhill slept. Tracks made by three or four different persons were also identified. Later $450.00 were found in a cap hanging on the wall in Brown’s home. The money consisted of seven $50.00 bills and five $20.00 bills. The paper that Broyhill had in his billfold on the night of 15 July, 1946, was also found near Brown’s spring. The money and paper were introduced in evidence.

The only evidence against the defendant Warren, other than his presence with Broyhill on the night of 15 July, 1946, is a conversation between the witness Sprinkle and Warren following his arrest and incarceration. Sprinkle testified that at the suggestion of Broyhill he went to the jail and had the following conversation with Warren: “I told him Broyhill said if he would find his money he would take up the papers. Warren said: ‘Will you get him to take up the papers if I get the money V I said, Tf you have got the money get it and you can get out of this trouble.’ He said ‘Get get my Daddy and Broyhill.’ ” On cross-examination Sprinkle testified that Broyhill named four different people who might have his money. That he said he had taken his purse out in Benton’s place. “It was all Broyhill’s idea for me to go in the jail and *24talk to Warren. He wanted me to go and see if I conld get bis money back. Tbe way I told bim was if be wanted to get out of tbe trouble. If be would give bim so much money, be would take up tbe warrant.”

Yerdict: Eacb defendant guilty as charged in tbe bill of indictment. From tbe judgment imposed, tbe defendants appeal, assigning errors.

Attorney-General McMullan and Assistant Atiorneys-General Bruton, Rhodes, and Moody for the State.

Trivette, Holshouser $ Mitchell for defendants.

DbnNy, J.

Tbe first assignment of error to be considered is based on. tbe exception to tbe refusal of bis Honor to sustain tbe defendants’ motion for judgment as of nonsuit. Tbe ruling of tbe court below in tbis respect as to tbe defendant Brown, will be upheld. However, we do not think tbe evidence as disclosed by tbe record is sufficient to sustain a verdict of guilty as to tbe defendant Warren.

There is no evidence tending to establish tbe guilt of tbe defendant Warren other than bis presence with Broyhill and Brown on tbe night of 15 July, 1946, unless tbe conversation which took place in tbe jail between tbe witness Sprinkle and Warren may be interpreted as a confession of guilt. We do not think tbis conversation should be so construed. Tbis view is supported by Sprinkle’s testimony on cross-examination. Sprinkle informed Warren that all be would have to do to get out of trouble would be to give Broyhill so much money. It cannot be fairly inferred as a confession of guilt when such a proposal was made for bim to reply “Go get my Daddy and Broyhill.” Tbe motion for judgment as of nonsuit should have been allowed as to tbe defendant Warren.

Tbe defendant Brown assigns as error tbe admission of evidence tending to show that one of tbe shoes worn by bim when be was arrested bad a sole worn down to tbe canvass, that tbe shoe made a peculiar mark on tbe ground, and that tbis shoe fit perfectly into tracks found in tbe cornfield where Broyhill slept on tbe night of 15 July, 1946. Tbis evidence was competent and tbe assignment of error cannot be sustained. S. v. Walker, 226 N. C., 458, 38 S. E. (2d), 531; S. v. Mays, 225 N. C., 486, 35 S. E. (2d), 494; S. v. McLeod, 198 N. C., 649, 152 S. E., 895.

Tbis defendant also assigns as error tbe failure of tbe trial Judge to define circumstantial evidence and to instruct tbe jury bow to appraise or evaluate such testimony. In tbe absence of a request to do so, tbe failure of tbe court to instruct 'the jury regarding circumstantial evidence, or as to what such evidence should show, will not be held for reversible error, if tbe charge is correct in all other respects as to tbe burden and measure of proof. S. v. Shook, 224 N. C., 728, 32 S. E. (2d), 392. However, when tbe trial Judge does charge tbe jury regarding *25circumstantial evidence no set formula is required, but an instruction substantially as given in S. v. Stiwinter, 211 N. C., 278, 189 S. E., 868, and approved in S. v. Miller, 220 N. C., 660, 18 S. E. (2d), 143, is required. There tbe Court said: “When tbe State relies upon circumstantial evidence for a conviction, tbe circumstances and evidence must be sucb as to produce in tbe mind of tbe jurors a moral certainty of tbe defendant’s guilt, and exclude any other reasonable hypothesis. . . . See, also, S. v. Madden, 212 N. C., 56, 192 S. E., 859, where’ Barnhill, J., fully-discusses tbe subject. See, also, 23 C. J., 149, 150, 153.”

It makes no difference whether tbe State is relying on circumstantial or direct evidence, or both, tbe evidence must produce in tbe mind of tbe jurors a moral certainty of tbe defendant’s guilt, otherwise tbe State has not proven bis guilt beyond a. reasonable doubt.

Tbe charge of bis Honor in tbe trial below is free from prejudicial error.

We have examined tbe other assignments of error and they are without merit.

We find no error in tbe trial below as. to tbe defendant Odell Brown.

Tbe judgment as to Eugene Warren is reversed.

On Brown’s appeal — No error.

On Warren’s appeal — Reversed.