State v. . Gordon

36 S.E.2d 143, 225 N.C. 757, 1945 N.C. LEXIS 390

Opinion

Denny, J.

The question for determination on tbiis appeal is whether the defendant’s motion for judgment as of nonsuit should have been sustained as to both counts in the warrant.

It is well settled with us that in passing upon a motion for judgment as of nonsuit in criminal prosecutions, the evidence must be considered in the light most favorable to the State, and when so considered the Court must determine whether or not there is any competent evidence to support the allegations in the warrant or bill of indictment. S. v. Herndon, 223 N. C., 208, 25 S. E. (2d), 611; S. v. McKinnon, 223 N. C., 160, 25 S. E. (2d), 606; S. v. Todd, 222 N. C., 346, 23 S. E. (2d), 47; S. v. Woodard, 218 N. C., 572, 11 S. E. (2d), 882; S. v. Brown, 218 N. C., 415, 11 S. E. (2d), 321; S. v. Hammonds, 216 N. C., 67, 3 S. E. (2d), 439; S. v. Landin, 209 N. C., 20, 182 S. E., 389; S. v. Marion, 200 N. C., 715, 158 S. E., 406.

We think the evidence adduced in the trial below is insufficient to support the verdict. The defendant may be guilty of the crime charged, but the evidence shows no more than an opportunity to commit the offense. The circumstances disclosed may be sufficient to raise a suspicion, but the evidence should raise more than a suspicion or mere conjecture as to the existence of the fact to be proved. S. v. Prince, 182 N. C., 788, 108 S. E., 330. The facts here are substantially different from those in S. v. Davenport, ante, 13, 33 S. E. (2d), 136, and similar cases cited by the State. Davenport and his paramour were constantly together day and night, on the streets or in one of his several homes, and when arrested late at night in one of these homes, no other persons were occupying the house and they came out of the same bed-room.' There was but one room in Grady Gordon’s house and it was occupied by eight people, including his wife.

The defendant’s motion for judgment as of nonsuit should have been allowed. Barker v. Dowdy, 224 N. C., 742, 32 S. E. (2d), 265; S. v. Todd, supra; S. v. Miller, 214 N. C., 317, 199 S. E., 89; S. v. Woodell, 211 N. C., 635, 191 S. E., 334; S. v. Aswell, 193 N. C., 399, 137 S. E., 174; S. v. Prince, supra; Hopkins v. Hopkins, 132 N. C., 25, 43 S. E., 506.

The judgment of the court below is

Reversed.