
203 S.E.2d 786 (1974)
285 N.C. 108
STATE of North Carolina
v.
Samuel A. POOLE.
No. 18.
Supreme Court of North Carolina.
April 10, 1974.
*790 Atty. Gen. Robert Morgan and Asst. Attys. Gen. William W. Melvin and William B. Ray, Raleigh, for the State.
Seawell, Pollock, Fullenwider, Van Camp & Robbins by P. Wayne Robbins, Southern Pines, Chambers, Stein, Ferguson & Lanning by Adam Stein, Chapel Hill, and David E. Kendall, NAACP Legal Defense Fund, New York City, for defendant appellant.
BOBBITT, Chief Justice.
Defendant assigns as error the denial of his motion under G.S. § 15-173 for judgment as in case of nonsuit. The question presented by this assignment is whether the evidence was sufficient to warrant the submission thereof to the jury and to support a verdict of guilty of the criminal offense charged in the indictment.
The rules for testing the sufficiency of the evidence to withstand defendant's motion are well established. 2 Strong, N. C. Index 2d, Criminal Law § 104. The evidence most favorable to the State must be considered as true. When so considered, was it sufficient to warrant a finding that the crime charged was committed and that it was committed by defendant? State v. Goines, 273 N.C. 509, 513, 160 S.E.2d 469, 472 (1968), and cases cited.
The testimony of Miss Maness was sufficient to support a finding that an unauthorized man unlawfully broke into and entered her occupied dwelling between 9:15 and 9:30 p.m. on Saturday, 19 May 1973. Arguendo, we assume the sufficiency of the evidence to warrant a finding that the intruder's intent when breaking and entering was to commit the felony of rape. The crucial question was whether the evidence was sufficient to warrant a finding that defendant was the unlawful intruder. In respect to this crucial question, the State's case depends wholly on circumstantial evidence.
The well established rule, cited with approval in numerous subsequent cases, is stated by Justice Higgins in State v. Stephens, 244 N.C. 380, 383-384, 93 S.E.2d 431, 433-434 (1956), as follows: "[T]here must be substantial evidence of all material elements of the offense to withstand the motion to dismiss. It is immaterial whether the substantial evidence is circumstantial or direct, or both. To hold that the court must grant a motion to dismiss unless, in the opinion of the court, the evidence excludes every reasonable hypothesis of innocence would in effect constitute the presiding judge the trier of the facts. Substantial evidence of guilt is required before the court can send the case to the jury. Proof of guilt beyond a reasonable doubt is required before the jury can convict. What is substantial evidence is a question of law for the court. What that evidence proves or fails to prove is a question of fact for the jury."
The crucial question is whether there was substantial evidence that this defendant was the intruder who entered Miss Maness's home on the night of 19 May 1973. This question can be answered only after close analysis of the evidence.
*791 Miss Maness did not identify defendant as the intruder. The only time she saw the intruder was when she "just caught a glimpse" of him when he was "just standing" in the hall, approximately 10 feet from the door of her bedroom. The hall area was lighted "by [her] bedroom light." The intruder did not speak. He was "a colored man and tall." He had a "short-barreled gun." Miss Maness didn't see his clothes and didn't know whether he was wearing a hat. Although she learned the next day that the lock to her bedroom door had been broken, "[she] did not hear anything which caused [her] to think it was being broken."
Miss Maness did not see the man outside who called to her that he had a gun and ordered her to stop. No witness testified to the identity of this man. There is evidence that he left the vicinity of Miss Maness's home when Wilmer Maness arrived. The evidence is silent as to the direction in which he was traveling when he left. Wilmer Maness did not testify.
Cheek testified defendant "is approximately 6 feet 2 inches." Dowd testified he sold defendant "a sawed-off .22 rifle" on or about May 12th. Moseley testified that, at 2:30 p.m. on Saturday, May 19th, such a rifle was in a truck operated by defendant.
Bruce, an employee of Bradley, testified that on Friday, May 18th, he (Bruce) had given defendant permission to drive Bradley's red panel truck. Cheek testified he first saw the truck on Saturday, May 19th, at 9:33 p.m., when going to Miss Maness's house; that the truck, unattended, was approximately 2/10 of a mile south of Miss Maness's house; that he checked the vehicle but did not operate it; that the ignition key was missing; that the next day, Sunday, May 20th, he (Cheek) arranged for the truck to be towed to Yow's Garage; that Bradley, the owner of the truck, brought an ignition key to Yow's Garage; and at that time he (Cheek) "just started the truck up and let it run for a while and shut it off."
Person testified that on Saturday, May 19th, "in the evening," he was "at the store," at which time Officer June Cockman "asked [him] questions"; and that, when he (Person) left the store "to go home" he saw defendant, alone, "coming toward [him] . . . coming towards the road to the store." Cheek, when recalled, testified that he was "familiar with the store referred to by Mr. Person," and that "the store is approximately ¾ miles from the nearest point to the paved road, 1479."
The evidence reviewed above tends to show that defendant had possession of the truck and of "a sawed-off .22 rifle" as late as 2:30 p.m. on Saturday, May 19th; and that he was seen "coming towards the road to the store" by Person, who didn't "really know that time it was."
There was no evidence as to where the truck was on Saturday, May 19th, from 2:30 p.m. until 9:33 p.m. We note Cheek's testimony that defendant told him that, "as soon as he left the truck, he traveled south on the rural paved road and was picked up by two boys that carried him to his residence." We further note Cheek's testimony that defendant made no statement "as to what time he was picked up" and "did not give the names of any persons who he said picked him up." Apart from these statements attributed to defendant, there was no evidence as to where defendant was from 2:30 p. m. on Saturday, May 19th, until Person saw him at some unspecified time "in the evening," and no evidence as to where defendant was from the time Person saw him until Cheek saw him on Sunday, May 20th, at approximately 9:30 a. m., at the Robbins Police Station.
Cheek, when recalled, testified to the distance from the store referred to by Person to the nearest point of the paved road. Originally, Cheek had testified that "[t]here is a store approximately two miles from the Maness residence in the Belview section." Whether this is the store referred to by Person is obscure.
*792 The evidence reviewed above tends to place defendant 2/10 of a mile south of Miss Maness's house at some unidentified time on Saturday, May 19th. There was no evidence relating to fingerprints of the man inside the house or relating to track prints of the man outside the house. The man inside the house did not speak. There was no evidence tending to identify the voice outside the house as that of defendant.
To place defendant at the scene of the crime, the State relies upon testimony relating to a dark brown button which Cheek found at approximately 3:30 a.m. on Sunday, May 20th, "in the fold of the curtain that was laying on the ground directly beneath the open window of the Tennie Maness residence." At about 5:45 p.m., during his second search of defendant's residence, Cheek found in the front bedroom a shirt from which one button was missing. Pearce testified to his examination and comparison of the button found by Cheek and the remaining buttons on the shirt. The shirt was "a common, everyday work shirt, gray cotton," bearing the label "Washington Dee and Cee, permanent press shirt." Pearce concluded that the button "could have been torn from the shirt"; that the button could have come from a shirt of that particular type made by the same or a different manufacturer; and that the button "certainly came from a shirt which had other buttons on it which were identical to it."
In our view, the opinion evidence of Pearce is insufficient to warrant a finding that the button found by Cheek came from the shirt found by Cheek on his second search of defendant's residence. In addition, we note the following:
The evidence is silent as to when, where and under what circumstances defendant was arrested. When arrested, was defendant wearing the shirt from which a button was missing or had been torn? Was the shirt in defendant's bedroom when Cheek, accompanied by Officer Cockman, first searched defendant's residence at approximately 9:45 a.m. on Sunday, May 20th? The shirt (Exhibit 8) was picked up when Cheek, accompanied by Officer Whitaker, made the second search of defendant's residence. Defendant was in custody at all times between the first search and the second search. Neither Cockman nor Whitaker testified.
Although Cheek observed the half of curtain on the ground below Miss Maness's window when he arrived at 9:33 p.m. on Saturday, May 19th, he did not see the button until 3:30 a.m. on Sunday, May 20th. Was the curtain in the custody of an officer during all or any part of this six-hour period? Was it accessible for handling by unauthorized persons during this six-hour period? The evidence is silent as to these matters.
The evidence is silent as to whether Miss Maness used her bedroom curtain or any part thereof when dropping from the bedroom window to the ground some 12 feet below. It is also silent as to when, by whom and under what circumstances the curtain had been hung.
The State suggests, but without support in the evidence, that the intruder (1) left the bedroom by way of the same window used by Miss Maness, and (2) used the curtain to break the force of his descent. Miss Maness estimated that "two minutes" elapsed from the time she locked the bedroom door until she reached the ground. During that period, she did not hear anything which caused her "to think [the lock] was being broken." She testified positively that she did not know how the man whom she saw in the hall got out of the house. Seemingly, it would have been quicker and easier for him to leave by the side door through which he entered.
The State points out that it has offered evidence which contradicts statements attributed to defendant by Cheek. There was uncontradicted evidence that the gas gauge on the truck was broken. However, the State's evidence was sufficient to support *793 a finding that defendant's explanation as to why he had left the truck was false. Too, there was evidence that defendant made a false statement with reference to his ownership of a weapon. However, assuming the statements attributed to defendant were false, the evidence reviewed above is the only evidence which purports to place defendant in the immediate vicinity of the home of Miss Maness at or about the time the crime was committed.
When the evidence most favorable to the State is sufficient only to raise a suspicion or conjecture that the accused was the perpetrator of the crime charged in the indictment, the motion for judgment as in case of nonsuit should be allowed. State v. Cutler, 271 N.C. 379, 383, 156 S. E.2d 679, 682 (1967), and cases cited. Notwithstanding there was evidence which raises a strong suspicion of defendant's guilt, we are constrained to hold that there was no substantial evidence that defendant was the person who broke into and entered the home of Miss Maness on the night of 19 May 1973. See State v. Jones, 280 N.C. 60, 67, 184 S.E.2d 862, 866 (1971), and cases cited.
Therefore, defendant's motion for judgment as in case of nonsuit should have been allowed.
Reversed.
LAKE, Justice (dissenting).
It is unquestionably true that upon the defendant's motion for judgment of nonsuit in a criminal action, the evidence of the State, including any which may have been improperly admitted, must be deemed to be true, the State is entitled to all inferences reasonably to be drawn therefrom and any discrepancies or inconsistencies therein are to be resolved in favor of the State. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156; State v. Vincent, 278 N.C. 63, 178 S.E.2d 608; State Primes, 275 N.C. 61, 165 S.E.2d 225; State v. Overman, 269 N.C. 453, 153 S.E.2d 44; Strong, N.C. Index 2d, Criminal Law, § 104. "Regardless of whether the evidence is direct, circumstantial, or both, if there is evidence from from which a jury could find that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be overruled." (Emphasis added.) State v. Goines, 273 N.C. 509, 160 S. E.2d 469.
In passing upon the motion for judgment of nonsuit, the court does not sit as a jury to determine whether the evidence is sufficient to convince the court beyond a reasonable doubt that the defendant is guilty of the offense charged. The function of the court, when such a motion is made, is simply to consider whether there is enough evidence, including all inferences which may reasonably be drawn therefrom, to permit a jury to so find. State v. McNeil, supra. If there is such evidence, it is for the jury, not the court, to say whether it is convinced beyond a reasonable doubt of the defendant's guilt of the offense charged, or of a lesser offense included therein. Strong, N.C.Index 2d, Criminal Law, § 106. This jury was so convinced.
There is, in this record, ample evidence to support a verdict that someone committed the offense charged in the indictment burglary in the first degree, the felonious intent accompanying the breaking and entering being the intent to rape the female occupant of the house. The undisputed evidence of the State is that Miss Maness returned to her home just as it was getting dark and was in bed reading, thus having a light burning in her bedroom. After dark, a Negro man broke and entered the house through a locked, outside door. He carried a firearm. Miss Maness, observing him in the hallway, slammed the door to her bedroom and locked it and ecaped through the window. When she, and those who came to her assistance, reentered the house immediately after the disturbing events were concluded, the locked door to the bedroom had been forced open and splintered. The intruder called to her as she fled from the house, saying, "Stop, I've got a gun." It is *794 not conceivable that the purpose of the breaking and entering, under these circumstances, was other than to rape the occupant of the home.
The remaining question is whether there was enough evidence to permit a jury to find that the defendant was the perpetrator of this offense. The evidence is that the intruder was a "colored man and tall." The defendant is a colored man, six feet two inches in height. A red, panel truck was found by the deputy sheriff, shortly after this break-in occurred, on a rural road less than a quarter of a mile from the Maness residence. The defendant drove it to to that point and left it there shortly before the break-in at the Maness residence. There was no residence closer to the truck than the Maness residence. There was no key in the truck. When questioned the following morning about his abandonment of the truck at that point, the defendant told the officer he had run out of gas. Obtaining an ignition key from the owner, the officer promptly started the truck without difficulty. The defendant also told the investigating officer that he had not had a firearm in several years. The evidence is that he purchased a sawed-off rifle one week prior to this occurrence and had it in his possession a few hours before the breaking and entering occurred.
The curtain at the window of the bedroom, through which Miss Maness escaped from the house, was found by the deputy sheriff lying on the ground outside the window when he arrived on the premises shortly after the breaking and entering occurred. Six hours later, the officer, continuing his investigation, found in the fold of this curtain a button. The record indicates that this discovery was made six hours before the defendant was arrested. Miss Maness testified that it did not come from any of her garments. The following day, the residence of the defendant was searched, with his permission, and a shirt, from which a button was missing, was found by the officers. The button found in the fold of the curtain, lying on the ground outside the window of Miss Maness' bedroom, matched exactly the buttons remaining on the shirt so taken from the defendant's residence, not only as to the size, shape, color and texture of the button, but also as to the thread remaining in the holes of the button so found and the thread by which the other buttons were attached to the defendant's shirt.
To say that this evidence is not sufficient to submit to a jury, for its determination, the question of whether this defendant, beyond a reasonable doubt, was the intruder into the Maness home is, in my opinion, completely at variance with the above stated rules governing the determination of a motion for a judgment of nonsuit.
HIGGINS and HUSKINS, JJ., join in this dissenting opinion.
