The defendant assigns as error the refusal of the court below to sustain her motion for judgment as of nonsuit at the close of all the evidence.
We think the real question involved in this .appeal is simply this: Who inflicted the injury to Thomas Morris Uanglois that ruptured his small intestine which caused the infection which in turn caused his death?
It is fundamental law that the proof of a charge in a criminal case involves the proof of two distinct propositions: (1) That the act complained of was done, and (2) that it was done by the person or persons .charged and by none other. Proof of both is a prerequisite to a conviction. S. v. Norggins, 215 N.C. 220, 1 S.E. 2d 533; S. v. Edwards, 224 N.C. 577, 31 S.E. 2d 762; S. v. Bass, 253 N.C. 318, 116 S.E. 2d 772.
The State’s evidence, in our opinion, was sufficient to show the following: (1) That the defendant had been seen on several occasions to punish the deceased child rather severely, the last incident being some two months before the child’s death. (2) That the child died from peritonitis due to some sharp or severe blow to the abdomen which punctured his small intestine. (3) That the body of the child was covered with bruises and lacerations. (4) That certain accusations were made in the presence of the defendant which would ordinarily call for some sort of denial by the defendant, but none was made. However, the persons purported to have made the .accusations took the stand at the trial and denied having made the accusations. Even so, the accusations with respect to mistreatment of the child on the part of the defendant do not tend to show that the defendant struck the blow that caused the peritonitis which in turn caused the death of the child.
In the case of S. v. Prince, 182 N.C. 788, 108 S.E. 330, Walker, J., speaking for the Court, said: “We may say generally that evidence should raise more than a mere conjecture as to the existence of the fact to be proved. The legal sufficiency of proof and the moral weight of legally sufficient proof are very distinct in the conception of the law. The first lies within the province of the court, the last within that of the jury. Applying the maxim, de minimis non curat lex, when we say that there is no evidence to go to the jury, we do not mean that there is literally and absolutely none, for as to this there could be no room for any controversy, but there is none which ought reason*495ably to satisfy the jury that the fact sought to be proved is established, though there is no practical or logical difference between no evidence and evidence without legal weight or probative force. The sufficiency of evidence in law to go to the jury does not depend upon the doctrine of chances. However confidently one, in his own affairs, may base his judgment on mere probability as to a past event, when he assumes the burden of establishing such event as a proposition of fact and as a basis for the judgment of a court, he must adduce evidence other than a maj ority of chances that the fact to be proved does exist. It must be more than sufficient for a mere guess, and must be such as tends to actual proof. *” S. v. Simpson, 244 N.C. 325, 93 S.E. 2d 425; S. v. Simmons, 240 N.C. 780, 83 S.E. 2d 904; S. v. Grainger, 238 N.C. 739, 78 S.E. 2d 769; S. v. Minton, 228 N.C. 518, 46 S.E 2d 296.
In the last cited case it is said: “It is an established principle of the administration of criminal law that circumstantial evidence is insufficient to sustain a conviction unless the circumstantial facts shown on the hearing 'are ‘of such a nature and so connected or related as to to point unerringly to the defendant’s guilt and exclude any other reasonable hypothesis.’ S. v. Harvey, 228 N.C. 62, 44 S.E. 2d 472.” See also S. v. Coffey, 228 N.C. 119, 44 S.E. 2d 886 and S. v. Madden, 212 N.C. 56, 192 S.E. 859.
Likewise, “the guilt of an accused is not to be inferred merely from facts consistent with his guilt, but they must be inconsistent with his innocence. S. v. Massey, 86 N.C. 658. ‘Evidence which merely shows it possible for the facts in issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient foundation for a verdict and should not be left to the jury.’ S. v. Vinson, 63 N.C. 335.” S. v. Harvey, supra, and cited cases.
This assignment of error will be upheld.