State v. . Massengill

DeviN, J. The defendants’ motion for judgment as of nonsuit was properly denied. There was proof that the cotton described in the bill of indictment had been feloniously taken on the night of 6 November, 1947, and that it had been removed from the place where stored and carried away by truck. This, with the evidence of the identification of the tracks of those who removed it as having been made at the time by two of the defendants, a trail of loose cotton leading along the road to the home of the other defendant who owned a truck, the appearance of the three the next morning “before good light,” at a gin, nine miles away, with the truck laden with two bales of seed cotton in sheets, together with evidence of conflicting statements, would seem to afford some evidence, when considered in the light most favorable for the State, to implicate the defendants as the guilty parties. There was also evidence to negative the suggestion that the cotton asported belonged to the defendants. S. v. McLeod, 198 N. C., 649, 152 S. E., 895; S. v. King, 222 N. C., 239, 22 S. E. (2d), 445; S. v. Warren, ante, 22, 44 S. E. (2d), 207. “When reasonable inferences may be drawn from them (the circumstances in *615 evidence) pointing to defendant's guilt, it is a matter for the jury to decide whether the facts taken singly or in combination produce in their minds the requisite moral conviction beyond a reasonable doubt.” S. v. Ewing, 227 N. C., 535, 42 S. E. (2d), 676; S. v. Lawrence, 196 N. C., 562, 146 S. E., 395. However, we think there was error in the instruction given by the court to the jury which entitles the defendants to a new trial. According to the record before us the only instruction given by the court in the application of the law to the evidence was that if the jury found beyond a reasonable doubt “that these defendants took N. L. Massengill’s cotton away on the night of the 6th of November, and sold it and converted the proceeds thereof to their own use, it would be your duty to return verdict of guilty; if you are not so satisfied it would be your duty to return verdict of not guilty.” The learned judge inadvertently omitted to charge that the taking must be felonious (S. v. Cameron, 223 N. C., 449, 27 S. E. (2d), 81), and his charge would also seem to require the jury to convict or acquit all three defendants indiscriminately, without distinction between them. The evidence against the three defendants was not identical as to each, and the jury should have been instructed they had the right, if they so found the facts to be, to convict or acquit one or more of them. The defendants were entitled to have the question of the guilt or innocence of each, on the evidence presented, submitted to the jury. . . New trial.