The opinion
BrogdeN, J.,
dissenting: Did the defendant throw Annie Terry from the bridge at Avent’s Ferry on the night of 24 March, 1928, at about 10:30 or 11 o’clock?
Avent’s Ferry Bridge is on a public road. Several other public roads run into the road leading to the bridge. The bridge is neither a secluded nor a desolate place, but one much used by the public generally. While' the defendant and his brothers and sisters owned as tenants in common the land of their deceased father, there is no evidence in the record that any living person had seen the defendant upon the land or traveling this particular road in twenty years.
The State relied wholly upon circumstantial evidence for conviction. The defendant by motions of nonsuit, challenges the sufficiency of the evidence and contends that the trial judge ought not to have submitted the case to the jury. Upon such motions, the defendant was entitled to have the entire evidence in the ease, both for the State and himself, considered and weighed by the trial judge and viewed in a light most favorable to the State. C. S., 4643; S. v. Killian, 113 N. C., 192 ; S. v. Brinkley, 183 N. C., 120 ; S. v. Pasour, 183 N. C., 193 . Viewing the evidence “in a light most favorable to the State” does not mean that the viewing eye shall be overindulgent, or that the viewing mind should span gaps or forge material links or supply essential deficiencies in the evidence, because the State is, and ought to be, as much interested in liberty as in punishment. In discussing this aspect of the law, Allen, J., *582 in. S. v. Oakley, 176 N. C., 755 , wrote as follows: “It is neither charity nor common sense nor law to infer the worst intent which the facts will admit of.”
It is not legally accurate to say that the weight and probative value of evidence is-exclusively a question for the jury. This is true only when the jury receives the case for consideration. The trial judge is the weigh-master in the first instance, and it is primarily his duty to weigh the evidence in order to determine whether or not it is sufficient .to be submitted to the jury.
What then are the tests or sign-boards which the law has set to guide the judge in determining this preliminary and fundamental question? In criminal cases the weighing tests may be classified as follows: (1) Every man is presumed to be innocent until the contrary is proved, and it is a well established rule in criminal cases that if there is any reasonable hypothesis upon which the circumstances are consistent with the innocence of the party accused the court should instruct the jury to acquit for the reason that the proof fails to sustain the charge. The guilt of a person is not to be inferred because the facts are consistent with his guilt, but they must be inconsistent with his innocence. S. v. Massey, 86 N. C., 658 . (2) The evidence must be more than a scintilla. A scintilla is some evidence, and is defined by this Court as “very slight evidence.” S. v. White, 89 N. C., 463 . (3) “Evidence which merely
shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it is so, is an insufficient foundation for a verdict and should not be left with the jury.” Wittkowsky v. Wasson,, 71 N. C., 451 ; S. v, Vinson, 63 N. C., 335 ; S. v. Massey, 86 N. C., 658 ; S. v. Powell, 94 N. C., 965 . (4) The evidence must reasonably warrant the verdict. In cases where the State relies upon circumstantial evidence alone, when is a verdict reasonably warranted? Stacy, J., in S. v. Melton, 187 N. C., 481 , has given a clear and comprehensive answer to this question in the following words: “It is the accepted rule of law, at least in felonies and capital cases, that where the State relies for a conviction upon circumstantial evidence alone, the facts established or adduced on the hearing must be of such a nature and so related to each other as to point unerringly to the defendant’s guilt and exclude every rational hypothesis of innocence.”
Therefore, in brief, a trial judge is not justified in submitting a case of this sort to the jury unless the evidence is more than very slight; creates more than a, possibility, conjecture or grave suspicion; excludes every rational hypothesis of innocence and points unerringly to the guilt of the defendant.
Bearing these established principles of law in mind, it becomes necessary to analyze the evidence in order to ascertain if it measures up to the standard declared in the law.
*583 The State relies upon five elements as tending to identify the defendant as the perpetrator of the crime, to wit: (1) Motive, (2) automobile tracks; (3) personal identity; (4) blood; (5) attempted suicide.
(1) Motive is built of substantially the following facts: When the defendant was first questioned by the sheriff he stated that he was engaged to be married. The evidence does not disclose that any specific date had been set for the ceremony. Fifteen letters were offered in evidence, written by the defendant to the deceased. Only two are dated. Of these, one is dated 29 December, 1925, and another 20 April, 1926. Another is dated 27 September, but there is nothing to indicate the year. These letters, covering certainly a period of years, indicate a desultory illicit relationship. Beyond this, they are as colorless as the mummy of the alleged Tutankhamen. They all begin with the formal salutation: “Dear Mrs. Terry,” and several of them close with the prosaic farewell: “Yours truly — Rover.” There is not a word of endearment or affection in any of them. There is no evidence that the deceased wanted or expected to marry the defendant. There is no evidence that the deceased knew or had reason to believe that the defendant was engaged. There is no evidence of any quarrel, fit of jealousy, ill-will, grudge or threats. These are the usual, if not universal sources, out of which motive flows. I know of no case, and none has been called to my attention, in which motive has been supposed to spring from any other source. The suggestion is that it was necessary for the defendant to be rid of the deceased so that he could at some time marry another woman. In order to build a motive out of these independent and unrelated facts three important guesses are required, to wit: (a) That the deceased in some way heard that the defendant was engaged and contemplated marriage at some indefinite time; (b) that as a result of such information she flew into a rage and threatened to “tell the world” that the defendant had been guilty of adultery; (c) that thereupon the defendant, fearing the gossip, or an accusation of adultery, or assignation, lured the de^ ceased into his automobile, drove her fifty miles to a public bridge, buying soft drinks on the way — knocked her in the head and threw her into the river. There is not a syllable or line of evidence in the record, as I read it, to support or create any of said guesses. Essential facts cannot be supplied by conjecture or created by speculation.
Applying the standard fixed by law for measuring evidence, can it be said that the evidence of motive is more than “very slight — a scintilla”— or does it create more than a “possibility” of truth? I think not. If this conclusion is correct, then all the alleged evidence of motive is no more than a legal zero.
(2) But the State contends that the automobile tracks found at the bridge are the same kind of tracks as were made by defendant’s automo *584 bile; bence suck tracks tend to identify tbe defendant at the scene of the killing. On this phase of the case the evidence is as follows: “I would say that the marks on the casing of that ear (defendant’s) were the same as the marks and tracks I saw on the bridge — Firestone tread.” But this same witness further said: “I have not observed the tracks made by those tires (defendant’s). Firestone casings are very popular, high-class tires, I think. The Firestone is a very common tire used in' this country. And the tread that I saw looked like it might have been made by a Firestone tire. I am pretty certain of that. That is as much as I can say.” The purport of this testimony then, is that there was nothing peculiar about the automobile track. It was an ordinary Firestone tire track, and in nowise different from any other Firestone tire track, such Firestone tires being in general and common use.
Does this evidence create more than a “possibility” that a particular Firestone tire, to wit, that of defendant, made the particular, track at the bridge? If not, the track evidence is merely another legal zero.
The State, however, contends that a green Nash coupe with wire wheels was seen on the bridge and in the community upon the night of the homicide. There was evidence on behalf of the defendant, not disputed or controverted by the State, that “there are a number of coupe style automobiles which resemble the Nash coupe, among them the Diana, the Buiek, and Beo.” Hence, there was nothing peculiar, striking or unusual about the defendant’s automobile, either in its color, wire wheels or style. There was no evidence that the deceased and the defendant had ever been seen riding together until the night of the homicide, but there is undisputed and uncontroverted evidence that the deceased on Sunday afternoon, 4 March, 1928, at about 5 o’clock in the afternoon, got in a green coupe, just like the automobile of the defendant, on a public street in the city of Durham, with an unknown man— not the defendant — and drove away. She did not come back that night. This evidence shows that the deceased, a short time prior to her death, was associating with some man other than the defendant, who drove a green coupe with wire wheels.
(3) The next link in the chain of circumstances relied upon by the State consists in what is termed personal identification of the defendant upon the night of the homicide. This identification is based solely upon the testimony of three witnesses, to wit: Jack Womble, Mrs. Charlie Goodwin, and II. E. Holland. Womble testified that at about 10:30 o’clock that night a man driving a green coupe with wire wheels in which a “settled aged woman” was riding stopped at his place of business and the man purchased soft drinks. The witness said: “The man in the car had a broad face, broad shoulders, and was clean shaven. . . . I never saw the defendant until I saw him here in the courthouse. I *585 think the man in the automobile looked like him, but I will not swear that it was him.” Mrs. Charlie Goodwin and her husband drove across the bridge at about 11 o’clock. She said, “As we passed I saAV a man in the ear- which was on the bridge. He turned his face directly toward me. He was a stout-built man, with a broad face, clean shaven. . . . The man appeared to be a middle aged man. I know the defendant and the man in the car looked like him, but I will not say that it was. My impression is that it looked like him.” It is to be observed that the witnesses- do not undertake to say that the man they saw was the defendant or that in their opinion it was the defendant, or that they “took it to be” the defendant, or that their best impression was that it was the defendant. Giving their words their plain meaning and import, these witnesses say in substance that they saw on that night a stout-built man, broad shouldered, clean shaven and middle aged, and that this man “looked like” the defendant, because he, too, was a clean-shaven, broad-shouldered, broad-faced, middle-aged man. Clearly this evidence is no more than the conclusion or deduction of the witness. S. v. Thorp, 12 N. C., 186 . Furthermore, this testimony at most identifies only the physical type or physical class of the person on the bridge, but evidence which merely designates the accused as a member of a certain physical class is insufficient and does not, in my judgment, “warrant a verdict of guilty,” particularly when the witnesses, who are very intelligent, are careful to qualify their answers so as to exclude any impression that they claimed to have recognized the defendant. The witness, Holland, testified that on the night of the homicide he was driving an automobile at a speed of about forty-five miles an hour and met two automobiles. The rear automobile was traveling at a rate of thirty-five miles or more per hour, and the driver of the rear automobile attempted to pass the one in front and put his head out of the window. This witness was subpoenaed by the State and the defendant was pointed out to him by the officers. He testified in substance that the man he saw on the road looked like the defendant. He further testified that the night was dark and his windshield was covered with mist. This purported identification made on a dark, rainy night, while two automobiles were whirling at high speed through the mist and fog, is so reckless, fanciful, and totally contrary to the common obseiwation of men who ride in automobiles and seek to identify even an acquaintance while the automobiles are traveling at high speed that I deem it unnecessary to discuss or waste time with such statements.
(4) Another circumstance urged by the State tending to identify the defendant was the presence of certain spots on the inside of the car which certain witnesses thought were blood stains or “looked like blood stains.” The largest spot on the inside of the car was about the size of *586 the nail of the little finger. Others were about the size of a match head. But the car was taken to Raleigh by the officers and subjected to a careful microscopic examination by Dr. Shore, an expert and director of the State Laboratory. Dr. Shore said, “As far as I am willing to go is to say that I think some of those spots on the inside of that car were stains of mammalian blood.” Mammalian blood covers a wide field, from a mouse to a whale. In order to give this evidence any weight at all two important facts must be supplied by guesswork, to wit: (a) That the mammalian blood referred to by the expert and other witnesses was human blood, (b) That such blood was also that of a particular human, to wit, the deceased. The blood evidence lies so clearly and so exclusively in the field of speculation and conjecture that I deem it unnecessary to debate this phase of the case.
(5) Finally, the State contends that the attempted suicide of defendant should he attributed to a consciousness of guilt. In the big cities of the United States in 1925 there were 2,808 homicides and 4,000 suicides. In other words, suicide was practically twice as prevalent as homicide. Who is wise enough to say that the 4,000 took their own lives because of a consciousness that they were guilty of some crime and that some day they might be apprehended or written up in a newspaper ? There is no decision in this State upon the competency or relevancy of such evidence. The decisions in other courts are not uniform. A diligent investigation discloses but few cases dealing with the subject. This in itself is strong proof that suicide evidence is unusual and practically unknown to the courts. The courts holding the view that such evidence is competent rest the decision upon the ground that there is some sort of intangible analogy between suicide and flight. No other reason has ever been advanced by any court. I cannot see such analogy. The impulse to escape and the impulse to commit suicide in my judgment must necessarily spring from two totally different states of mind. The Supreme Court of North Dakota in S. v. Coudotte, 72 N. W., 913 , has given, in my judgment, the clearest and most logical analysis of the question to be found anywhere in the hooks. In holding evidence of attempted suicide incompetent and irrelevant, the Court says: “One who flees does so, generally, for the purpose of avoiding the-punishment that follows violated law. One who commits or attempts suicide seeks to avoid no punishment. He deliberately accepts the highest punishment that the law could possibly inflict — death. Hence the very circumstance that raises the presumption of guilt from flight is absolutely wanting in suicide. . . . When we essay the task of accounting for suicide on any general grounds, we undertake a task that from its very nature, is impossible of performance. The human mind is so wonderfully, yet so delicately, constructed, the human passions are so powerful, yet so varied, that it is idle for any *587 one person to pretend to enter the consciousness of another, and account for the inner workings of that other mind. We only know that, whatever may be the motive, it is not, and cannot be, a desire to avoid punishment.- . . . This being true, a jury never should be permitted to treat it as evidence of guilt.” Moreover, the defendant left a bloody note declaring his innocence and stating that he was committing the act because he was being “framed” and could stand it no longer. So far as the defendant was concerned, this was a dying declaration, and surrounded with all the solemnity of other dying declarations. One thing is certain, and that is that the mind in some way gives expression to its conclusions and emotions. It is the common observation of mankind that few men are willing to launch the mortal bark upon the dark waters of eternity with a lie upon their lips. This dying declaration accompanied and explained the act, and in my judgment was far more conclusive of the motive impelling the act than of some other motive carved bodily out of the wide spaces of imagination.
It is also significant that a man named Haskins was arrested and charged with the murder before a warrant was issued for the defendant. Haskins was a married man who was offered as a State’s witness, and who testified that he knew the deceased and had called on her “once or twice and took her to ride in my automobile one night.” The alibi of Haskins was accepted by the officers and he was released.
I do not know whether or not the defendant is guilty. All I know is the record which I have before me. From this record the deceased was associating with other men, and the evidence does not point “unerringly to the defendant’s guilt,” nor does it create more than a suspicion or possibility of the guilt of the defendant. The record leaves upon my mind the impression that the horror of the crime demanded a victim, and that as a result thereof the defendant was bound as a smoking sacrifice upon the altar of conjecture and suspicion. In my judgment, the case made against the defendant was far weaker than the Montague case, the Goodson case, the Brackville case, the Lytle case, or any other case in the books.
It is contended that the facts and circumstances are so slight in' probative value that in themselves and standing alone they would not amount to evidence, but when taken in combination they constitute a rope of great strength. I do not concur in this reasoning. Unless the principles of mathematics have been recently changed, adding a column of zeros together produces zero; neither can a multitude of legal zeros beget a legal entity.