State v. . Mitchener

Davis , J., (after stating the case). 1. If there was any evidence it was for the jury to say what weight and effect *693 should be given to it. It has been often said that what is evidence, or whether there is any evidence, are questions for the Court — its force and effect for the jury. When there is any evidence to go to the jury, it is not within the province of the Court to say what weight they shall give to it. If, in the opinion of the Court, the verdict is against the weight of evidence, or is not justified by the evidence, the Judge may, in his discretion, set it aside, but this Court cannot review, direct, or in any way control his discretion. These propositions are too well established to need reference to authority. Juries generally know best what weight to give to the testimony of witnesses — the bias and influence under which they speak — their manner and bearing — come under their immediate observation, and they can form a much more accurate estimate of the weight to which the testimony of witnesses is entitled than can be derived from a perusal of the testimony; and the Judge, who presides at the trial and witnesses all that transpires, can form a more accurate opinion as to the fairness of the verdict, and is the best and safest depository of discretionary power over the verdict. Was there any evidence in this case that should have gone to the jury? Upon a careful examination of the evidence sent up, we think that, as to the defendant Mitchener, there was some evidence, and the jury having found a verdict of guilty, the refusal to grant a new trial upon the first ground assigned is, as to him,' not subject to our review. State v. Atkinson, 93 N. C., 519; State v. Powell, 94 N. C., 960; State v. McBryde, 97 N. C. The character of the evidence against Mitchener will be considered under the third exception. As against the defendant Sam Moore, we think the evidence was too slight and insufficient to reasonably warrant a verdict of guilty, and it should, therefore, not have been submitted to the jury. It was purely circumstantial, and instead of constituting such a chain of circumstances as to *694 lead,- beyond reasonable doubt, to that defendant’s guilt, there were but two broken links in the chain, neither sufficient in itself, nor both together, to constitute more than a scintilla of evidence — a mere conjecture — of guilt. The simple fact that he was from home, without any circumstance in any way connecting him with the crime charged, could be no evidence of guilt. What was said at the breakfast table was entirely consistent with innocence, and, as was said by his counsel, “ was a very natural remark, and might have been innocently made at half the breakfast tables in Selma.” The matter was doubtless the subject of much talk, and a guilty person, interested in concealing rather than divulging the perpetrators of the crime, would have been less apt to make such a remark than an innocent person. We think the ruling in the case of State v. White, 89 N. C., 462, and what was said by MekrimoN, Judge, in that case, entirely applicable to this case, and we deem it unnecessary to do more than to refer to that case and the authorities there cited. 2. It is insisted that there was no evidence of asportation. Parker testified to the identity of the flour, and that it was his, and he thought the bacon was his also. The flour and ham were found on the sidewalk; it had been in the store. Somebody had removed it. Any removal is a sufficient asportation, and there was evidence of removal. State v. Craige, 89 N. C., 475, and cases cited. 3. The failure of his Honor to charge the jury, as requested by counsel for the defendant in their argument to the jury, in regard to the testimony of Henry Snow, is not a ground for a new trial. Since the case of State v. Haney, 2 D. & B., 390, it has been held that juries may convict upon the unsupported testimony of an accomplice, if they shall believe his statements. State v. Miller, 97 N. C., 484, and cases cited. Henry Snow was not an accomplice in this case, but he seems to have been a very great thief, and testified under *695 very strong inducements, and yet the jury may believe a notorious thief, even when testifying under circumstances of great temptation, but they ;ire not apt to do so, unless there is some inherent probability of truth in his statements, or unless, from all that appears before them in the trial, they are satisfied that he has told the truth. It is apparent that there were more thieves than one engaged in stealing the ham and flour — there seems to have been much stealing in Selma about the time. It is quite probable that the thieves engaged knew others of their own character and profession; and to whom would they more probably unbosom themselves than to a fellow-thief? And to what fellow-thief sooner than to one who, in addition to brotherhood in crime, was a spiritual guide and adviser, and pretended to pray and preach for them? The jury not only heard what was said, but the defendants as well as witnesses were before them, and they had the aid of what they saw as well as heard— of looks, manners, expression of countenance, &c. The attendant circumstances aid juries in determining what, if any, credit they will give to witnesses, and there are circumstances under which they may believe the testimony of very bad and untruthful men, and cases in which such evidence may be satisfactory. As to the defendant Moore there is error, and he is entitled to a new trial. As to the defendant Mitchener there is no error. Affirmed as to Mitchener, and reversed as to Moore.