asserting that “more than a scintilla of evidence” is not the true test, rather, the test is whether there is “substantial evidence—direct, circumstantial, or both—to support a finding that the offense charged has been committed and that the accused committed it” (quoting State v. Stewart, 292 N.C. 219, 224 (1977))
How later courts described this case
- asserting that “more than a scintilla of evidence” is not the true test, rather, the test is whether there is “substantial evidence—direct, circumstantial, or both—to support a finding that the offense charged has been committed and that the accused committed it” (quoting State v. Stewart, 292 N.C. 219, 224 (1977))
- defendant embezzled funds from state checking account over which she had “sole control” to make advances
Written by the judges who cited it.
The opinion
Justice EXUM
dissenting.
While there may be statements in earlier cases that “more than a scintilla of evidence” is enough in a criminal case to survive a motion for nonsuit, see State v. Kelly, 243 N.C. 177 , 90 S.E. 2d 241 (1955), relied on by the majority for this test, our more recent cases have correctly stated that the true test is whether there is “substantial evidence — direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the accused committed it.” State v. Stewart, 292 N.C. 219, 224 , 232 S.E. 2d 443, 447 (1977); accord, State v. White, 293 N.C. 91 , 235 S.E. 2d 55 (1977); State v. Smith, 291 N.C. 505 , 231 S.E. 2d 663 (1976); State v. Cousin, 291 N.C. 413 , 230 S.E. 2d 518 (1976); compare the citations supporting the “more than scintilla” test with those supporting the “substantial evidence test” in Strong’s N.C. Index 3d, Criminal Law § 106, p. 548, nn. 61-63. In its consideration of this case the Court of Appeals correctly applied the substantial evidence test, relying on our decision in State v. Evans, 279 N.C. 447, 453 , 183 S.E. 2d 540, 544 (1971).
Applying the substantial evidence test here, which I believe to be the proper one, I feel defendant’s motions for nonsuit as to *397 all charges should have been allowed. There is substantial evidence here of inadequate and perhaps careless bookkeeping in the embezzlement case and poor judgment in the misapplication of funds case by a harried county employee. There is no substantial evidence of criminal or corrupt conduct on her part. I vote to affirm the well-considered decision of the Court of Appeals.