State v. . Telfair

Avery, J. after stating the facts: The defendant’s request for instruction was equivalent to a demurrer to the strongest phase of the testimony which is presented in the foregoing summary, of those facts tending to establish his guilt. This evidence, together with other testimony tending to explain or contradict it, which it is not necessary to set forth here, should, unquestionably have been submitted to the jury to determine whether they entertained any reasonable doubt of the defendant’s guilt. There is no exception to the terms of *881 the charge, which seems to have been conceived in a spirit of fairness, if not of liberality, towards the prisoner. The testimony of the prosecutor, if not sufficient of itself to go to the jury on the question of identity, is strengthened by proof that the defendant’s shoes, which had been run down, fitted in the tracks made by the person who committed the assault and also on the foot of defendant. Besides, one witness, Holliday, swore to the absolute identity of the shoes worn by the defendant on the afternoon just before the shooting, when he left the field at an unusual hour, and the shoes exhibited on the trial, and which the officer making the arrest testified that he found in the defendant’s house. The prosecutor testified that the size, height, complexion and appearance of the man who shot were those of the defendant according to his best judgment, and that the shirt worn by the person who shot him at a distance of six steps, was, in his opinion, that worn by the defendant on the preliminary trial two days after, it being possible for the witness to see a man plainly fifty yards, looking from his standpoint, when shot, in the direction in which his assailant stood and subsequently ran. These facts, admitted by the request in the nature of a demurrer, were sufficiently strong to make it the duty of the Judge to submit them to the jury, and to warrant the verdict of guilty returned by them. The contradictory and explanatory testimony elicited from the witnesses was presented, or might have been presented, to the jury on the argument by counsel in their bearings upon the question of guilt. It was the province of the jury to weigh all of the evidence, which we assume they did. A review of the testimony (which, as it is insisted, is insufficient to justify the verdict), and a comparison of it with that held to be sufficient to go to the jury in other cases, will show that testimony not so satisfactory has been held sufficient to sustain a verdict of guilty. State v. Atkinson, 93 *882 N. C., 519; State v. Powell, 91 N. C., 965; State v. McBryde, 97 N. C., 393; State v. Christmas, 101 N. C., 749. Placing the most liberal construction upon the evidence, the prosecutor testified to the positive identity of the shirt worn by the prisoner at the trial, two days after the shooting, with that worn by the person who shot him, and corroborated this opinion by the statement that his assailant was about the same height, size and complexion, and, like the prisoner, was clean shaven, and that he made the track subsequently examined by the witness with what appeared to be a run-down shoe. The identification of the shoe worn by him on the previous afternoon and fitting it in the track by other witnesses, form, together with the prosecutor’s evidence, a network of circumstances so strong as to leave no room for question as to the correctness of his Honor’s holding that there was testimony which it was his duty to submit to the jury. We have not construed the language used by the prosecutor on his cross-examination according to its literal meaning, but have interpreted his whole statement together. Stokes said, among other things, “I could see fifty yards at that place Defendant was about six steps from me when he shot. I saw him as he started 1o run.” Taking this detached statement literally, and construing it without reference to the qualifying language used by the witness, it is an absolute assertion that he recognized the defendant when he started to run immediately after firing the gun. Whether the prosecutor claimed to have identified the defendant at that moment and gave the description of the dress, size and complexion solely for the purpose of corroborating his positive claim of recognition, or whether his opinion of the identity of his assailant and the accused was founded upon, instead of being justified by, the description he has given, in either view there was testimony which took the case beyond that pale within which the Court could discuss its weight. *883 State v. Perkins, 104 N. C., 710. The evidence was not clearly inconclusive as to the defendant’s guilt, and it would have been error to have so held and to have withdrawn the case from the consideration of the jury. State v. Dixon, 104 N. C., 704. Affirmed.