State v. . Hawkins , 155 N.C. 466 ( 1911 )

After stating the case: It is apparent that the failure to use the word "did" in the indictment is a clerical or grammatical error, which is cured by our statute (Revisal, 3254). The meaning of (470) the bill is clear and the defendant could not have been misled, nor could he have failed to understand the exact nature of the offense charged.

In Joyce on Indictments, sec. 201, it is said: "Though an indictment may be couched in ungrammatical language, this will not, of itself, render the indictment insufficient, provided the intention and meaning of the pleader is clearly apparent." And in section 202: "It is the general rule than an indictment is not vitiated by mistakes which are merely clerical, where they do not destroy the sense of the indictment, and the meaning is apparent."

A case in point is Bond v. State, 55 Ala., which holds an indictment sufficient which charged that "the defendant broke into and entered a storehouse of R. D., with the intent to steal, in which there was at the time of such breaking and entering goods, merchandise, or other valuable things kept for use."

In Com. v. Call, 21 Pick. (Mass.), 515, Justice Morton says: "The grammatical and critical objection, however ingenious and acute it may be, cannot prevail. The age is gone by when bad Latin or even bad English, so it be sufficiently intelligible, can avail against the indictment, declaration, or plea."

The evidence for the State, when considered in connection with that of the defendant, and the evidence of his good character, would have fully justified a verdict of acquittal; but we can not say there was no evidence fit to be submitted to the jury, and it was for them to determine its force and conclusiveness.

The controlling principle in determining whether there is evidence which the jury ought to consider is well stated in S. v. White, 89 N.C. 464, and approved in S. v. Walker, 149 N.C. 530, as follows: "It is well-settled law that the court must decide what is evidence, and whether there is any evidence to be submitted to the jury, pertinent to an issue submitted to them. It is as well settled that if there is evidence to be submitted, the jury must determine its weight and effect. This, however, does not imply that the court must submit a scintilla — very slight evidence; on the contrary, it must be such as, in the judgment of the court, would reasonably warrant the jury in finding a verdict upon the issue submitted, affirmatively or negatively, according as they might view it in one light or another, and give it more or less weight, or (471) none at all. In a case like the present one, the evidence ought to be such as, if the whole were taken together and substantially as true, the jury might reasonably find the defendant guilty. A single isolated fact or circumstance might be no evidence, not even a scintilla; two, three, or more, taken together, might not make evidence in the eye of the law; but a multitude of slight facts and circumstances, taken together as true, might become (make) evidence that would warrant a jury in finding a verdict of guilty in cases of the most serious moment. The court must be the judge as to when such a combination of facts and circumstances reveal the dignity of evidence, and it must judge of the pertinency and relevancy of the facts and circumstances going to make up such evidence. The court can not, however, decide that they are true or false; this is for the jury; but it must decide that, all together, they make some evidence to be submitted to the jury; and they must be such, in a case like the present, as would, if the jury believe the same, reasonably warrant them in finding a verdict of guilty."

The evidence of the State tended to prove that on the night the crime is alleged to have been committed there was a crowd in the hall until between 10 and 11 o'clock; that while the crowd was there the defendant went to the hall and was told to leave, which he did; that after the crowd left, the door was locked, as padlock, hasp and staple being used; that property of some value was left in the hall; that between 1 and 2 o'clock in the night a policeman, who slept in the building, heard a noise like some one working at the lock of the door; that he heard something break and he thought it was the lock; that he went immediately to the hall and found the door open and the lock gone; that the defendant was on the inside, and when the policeman reached the door, he sat down by the stove.

If so, the jury, could find from the evidence that the defendant broke the lock to the door and entered the hall, in which there was property, with the criminal intent alleged in the indictment.

(472) "The intent may, and generally must, be proven by circumstantial evidence, for as a rule it is not susceptible of direct proof. It may be inferred from the time and manner at and in which the entry was made, or the conduct of the accused after the entry, or both." Cyc., vol. 6, p. 244.

In S. v. McBryde, 97 N.C. 393, the defendant was charged with breaking into a dwelling with intent to commit larceny, and in discussing the evidence of intent, the Court says: "The intelligent mind will take cognizance of the fact that people do not usually enter the dwellings of others in the night-time, when the inmates are asleep, with innocent intent. The most usual intent is to steal, and when there is no explanation or evidence of a different intent, the ordinary mind will infer this also. The intent is not the object of sense; it can not be seen or felt, and if felonious, is not usually announced; so where no felony is committed, it would be difficult to prove a crime consisting of the intent alone, unless the jury be allowed to infer the intent from circumstances."

This is the law as announced in many decisions of this and other courts, but in its application juries should be guided by the humane rule delivered by Judge Ruffin in S. v. Massey, 86 N.C. 660: "When an act of a person may reasonably be attributed to two or more motives, the one criminal and the other not, the humanity of our law will ascribe it to that which is not criminal. `It is neither charity nor common sense nor law to infer the worst intent which the facts will admit of. The reverse is the rule of justice and law. If the facts will reasonably admit the inference of an intent, which though immoral is not criminal, we are bound to infer that intent.'"

The evidence of criminal intent is, we think, stronger than in S. v.McBryde, supra, and in S. v. Christmas, 101 N.C. 754, in which judgments upon convictions were affirmed.

The motion in arrest of judgment upon the ground that the State failed to prove that the hall was the property of the town of Morganton, was properly overruled.

If there had been a failure of proof, the defendant should have taken advantage of it by a prayer for instruction, and not by motion in arrest of judgment. S. v. Baxter, 82 N.C. 606; S. v. Harris, (473)120 N.C. 578; S. v. Huggins, 126 N.C. 1056.

It seems, however, there was evidence of the fact. A witness testified without objection: "The building belongs to the town of Morganton," and there was no evidence to the contrary. The fact that the defendant was in the house was a circumstance to be considered by the jury upon the question of criminal intent. We find

No error.

Cited: Cabe v. R. R., ante, 405; S. v. Wellman, 166 N.C. 355; S.v. Rogers, ibid, 390; S. v. Allison, 169 N.C. 375.