State v. Lee, 213 N.C. 319 (1938)

March 23, 1938 · Supreme Court of North Carolina

213 N.C. 319

STATE v. MONROE LEE.

(Filed 23 March, 1938.)

Criminal Law § 85—

Where, on a former appeal, a new trial is awarded for error in the admission of evidence, but it is determined that the evidence was sufficient to be submitted to the jury, a motion to nonsuit upon the second trial upon substantially the same evidence is correctly denied.

Appeal by defendant from Burgwyn, Special Judge, at September Term, 1937, of Habnett. No error.

Defendant was indicted for willfully and wantonly burning a barn, tbe property of Wilson Lucas. From judgment pronounced on verdict of guilty defendant appealed.

Attorney-General Seawell and Assistant Attorneys-General McMullan and Willis for the State.

J. R. Young and I. R. Williams for defendant.

Per Curiam.

Tbe principal question presented by tbis appeal is tbe correctness of tbe ruling of tbe court below in denying defendant’s motion for judgment as of nonsuit. When tbis same case was bere on tbe defendant’s appeal at Spring Term, 1937 (211 N. C., 326), a new trial was awarded for error in tbe admission of evidence. In tbat case it was said: “While tbe evidence was entirely circumstantial, and included testimony as to tbe action of bloodhounds, admitted for tbe purpose of corroboration, we are unable to say that tbis did not constitute more than a scintilla of evidence, and so sufficient to take tbe case to tbe jury. S. v. Thompson, 192 N. C., 704.”

Substantially tbe same testimony was presented by tbe State in tbis last trial, and again tbe jury has found tbe defendant guilty. Tbe motion for judgment of nonsuit was properly denied.

Tbe other exceptions noted at tbe trial and assigned as error cannot be sustained. We find no sufficient reason to disturb tbe result of tbe trial.

No error.