— after stating the facts: The first exception was, that a witness was allowed to testify that defendants 'were kin to Sherman Brooks. At the most, this evidence was merely immaterial, and not ground of exception, unless the defendants show that they probably suffered prejudice thereby. Livingston v. Dunlap, 99 N. C., 268; Waggoner v. Ball, 95 N. C., 323; Jones v. Call, 93 N. C., 170; Dupree v. Insurance Co., 92 N. C., 417. It was in evidence already, without exception, that the defendants were more nearly related to Henry Eller and Linville Eller. It is hard to see how the defendants could have been prejudiced or the jury misled by testimony that the defendants were “some kin” to Sherman Brooks.
As to the second exception, the Judge, in his charge, instructed the jury not to give the testimony as to Henry Eller and Sherman Brooks any weight, in passing upon the guilt or innocence of the defendant Coon Eller. Both inquiries were evidently put by the Solicitor with a view of showing, if he could, a combination between these defendants and the others, and the execution by them of a common design. The charge of the Judge cured the error as to Coon Eller, if any, in admitting them. State v. Collins, 93 N. C., 564; Bridgers v. Dill, 97 N. C., 222. The exception to the refusal to charge, and to the special charge given, raises the question whether there was sufficient evidence to submit the case to a jury. If the evidence merely' raised a suspicion or conjecture of guilt, it -was not legal evidence, and the *857Court should have' directed a verdict of not guilty. But if the evidence, considered as a whole, could, in any just and reasonable view of it, warrant a verdict, it should have been left to the jury as the proper triers of the fact. As to George Eller, there was no evidence, beyond the statement of one of the witnesses that some two and a half or three years before he had joined in an unexecuted agreement to rob Cox’s store, and his forfeiting his bond and evasion of re-arrest in this case. These circumstances were sufficient to raise a conjecture or suspicion, but 'were not, as we think, such evidence as entitled the State to have the cause as to him submitted to a jury. State v. James. 90 N C., 702.
As to the other defendant, Coon Eller, there was evidence tending to show that he was one of the men found carrying the stolen coffee, at night, along the road, a few days after the larceny, and that when halted by a guard his whole party dropped the coffee and ran off; that after his arrest he forfeited his bond and evaded re-arrest till after Henry Eller, one of the men identified as being with him carrying the stolen coffee, had been killed, whereupon he came in and surrendered himself; that he was a brother of Henry Eller and Linville Eller, and a neighbor of Sherman Brooks, the other three men testified to as being in possession of the stolen coffee. There being evidence connecting the defendant Coon Eller with the transaction, its sufficiency was a matter for the jury.
As to George Eller there is error, and as to him there must be a venire de novo
As to Coon Eller, the judgment is affirmed.