State v. . Shoup

Seawell, J. Our office on review does not permit us to pass on tbe weight of evidence. We can only assure tbe demurring defendant tbat be shall not be convicted except on evidence tending to show bis guilt; S. v. McKinnon, 223 N. C., 160, 25 S. E. (2d), 606; S. v. Johnson, 220 N. C., 773, 18 S. E. (2d), 358; S. v. Stephenson, 218 N. C., 258, 10 S. E. (2d), 819; G. S., 15-173, and annotations; and we cannot agree with counsel for tbe appellant tbat tbe evidence submitted to tbe jury on tbe trial is not of tbat character. Tbe motions for judgment as of non-suit were properly overruled. Appellant’s first exception relates to tbe evidence tbat be registered at a hotel in Greensboro under an assumed name, after breaking bis trip to Charlotte at tbat point and leaving tbe bus before reaching tbe station. Taken with other related circumstances it leads to tbe inference tbat bis motive was to cover up bis identity and avoid being traced for tbe recent crime. It was in tbe nature of an admission and competent as an incriminating circumstance. S. v. Payne, 213 N. C., 719, 197 S. E., 573; S. v. Lawrence, 196 N. C., 562, 146 S. E., 795; S. v. Dickerson, 189 N. C., 327, 127 S. E., 256. Exceptions 2 and 3 question tbe competency of tbe police officer’s testimony tbat be did not think it worth while to investigate tbe claim of defendant tbat be bad relatives in Greensboro. It is not clear tbat defendant could have been prejudiced by tbe statement. Exceptions 5 and 6 are to tbe identification of tbe written “notice” or guaranty by tbe Navy Housing office of two weeks rent at tbe Dale Dormitories, and its introduction in evidence. Tbe objection is both to its relevancy, and to its use as having been taken from defendant on a personal search, and thus compelling him to testify against himself. As to tbe manner of its acquisition and subsequent use in evidence, our Court has uniformly held tbat Article I, sec. 11, of tbe Constitution is not infringed by tbe introduction of evidence thus procured. Moreover, tbe defendant went upon tbe stand in bis own behalf and waived bis constitutional right against self-incrimination. S. v. Hickey, 198 N. C., 45, 48, 150 S. E., 615; S. v. Graham, 74 N. C., 646, 648. S. v. Hollingsworth, 191 N. C., 595, 132 S. E., 667, is distinguishable. In tbat case tbe defendant was required in open court and in the presence of tbe jury *73 to band over to tbe State incriminating documents for use against bim in tbe trial. As to tbe relevancy of tbe paper, however minor it may be in probative force, we cannot say tbat it is devoid of any inference contradictory of defendant’s claim as to tbe amount of money be bad when be came to Norfolk, a matter of circumstantial importance in tbe case. See S. v. Payne, supra; S. v. Lawrence, 196 N. C., 562, 146 S. E., 395; S. v. Wellman, 166 N. C., 354, 81 S. E., 745; S. v. White, 162 N. C., 615, 77 S. E., 999; S. v. Bruce, 106 N. C., 792, 11 S. E., 475. In exception 8 tbe appellant complains tbat tbe trial judge misstated tbe testimony of a police officer in summing up tbe evidence. Tbe judge told tbe jury, in substance, tbat tbe defendant said be took tbe money “because be did not know bow mucb tbe man bad.” Passing tbe fact tbat tbis is a close approximation to tbe officer’s testimony, if it was an erroneous statement, it was such as to require tbat tbe attention of tbe judge should be called to it at tbe time for immediate correction, otherwise it would not be available on appeal. Tbis was not done. S. v. Wagstaff, 219 N. C., 15, 12 S. E. (2d), 657; S. v. Hobbs, 216 N. C., 14, 3 S. E. (2d), 431. Exception 9 assigns as error tbe fact tbat tbe judge, as a contention and not as a direct statement of law, instructed tbe jury tbat where tbe conduct of tbe defendant could be attributed to either of two motives, one innocent and tbe other criminal, tbe jury should take tbe more charitable view. S. v. Massey, 86 N. C., 660. Tbis was, of course, favorable to tbe defendant, but tbe court was not bound to give tbe instruction at all in tbe absence of a request. It was tbe privilege of tbe defense to ask for it if it was desired in different form. See S. v. Rogers, 166 N. C., 388, 390, 391, 81 S. E., 999. Tbe last assignment of error, exception 10, points out tbat tbe court failed to state tbe law where circumstantial evidence is involved, and tbat tbe evidence here is predominantly of tbat character. Precisely in what tbe failure consists, we are left to surmise: We assume tbat it relates to tbe degree of circumstantial proof required to convict. Every now and then, through tbe force of precedent, definitions and interpretations of tbe more technical features of tbe law are newly included in tbe category of “musts” in explaining tbe law and applying it to tbe evidence under G. S., 1-180. Perhaps in extraordinary or unusual conditions tbat duty might arise with regard to circumstantial evidence, but no precedent is brought to our attention in tbe instant case. Tbe presence, use, and significance of circumstantial evidence in cases of tbis kind 'are commonly understood by all men, and there is danger tbat too mucb elaboration might have a tendency to confuse rather 'than aid tbe intellectual processes in reaching a reasonable verdict. In tbe present state of tbe law and practice, and upon tbe facts of tbis case, we think tbe duty *74 of tbe trial court is fully implied in tbe following observation from S. v. Shook, 224 N. C., 728, 731, in whicb the Court quotes with approval from S. v. Adams, 138 N. C., 688, 50 S. E., 765: “There is no particular formula by wbicb tbe Court must charge tbe jury upon tbe intensity of proof. ‘No set of words is required by tbe law in regard to tbe force of circumstantial evidence. All that tbe law requires is that tbe jury shall be clearly instructed, that unless after due consideration of tbe evidence they are “fully satisfied” or “entirely convinced” or “satisfied beyond a reasonable doubt” of tbe guilt of tbe defendant, it is their duty to acquit . . .’ ” Tbe charge in tbe instant case met this requirement. Upon tbe record we find No error.