#### STATE v. ANNA K. MONTAGUE.

(Filed 31 January, 1928.)

Criminal Uaw — Evidence—Sufficiency.

Circumstantial evidence of a homicide is not sufficient when by any reasonable inference therefrom the question of guilt should remain uncertain in the mind of the jury, and under these circumstances defendant’s motion as of nonsuit should have been allowed.

ObimiNal action, before *Shaw, J.,*at June Term, 1927, of Buncombe.

The defendant, Anna *K.*Montague, was indicted for the murder of Mary A. Cooper, and was convicted of 'murder in the second degree, and *21sentenced to tbe State prison for a term of not less tban twelve nor more tban twenty years at bard labor. Tbe record shows tbat tbe jury “recommends tbe defendant to tbe mercy of tbe court.”

*Attorney-General Brummitt and Assistant Attorney-General Nash for th$ State.*

*Lush & Beachboayd and Reynolds & Sullivan for defendant.*

BeogdeN, J.

The testimony discloses certain independent and unconnected circumstances upon which the State relied for conviction. The principle of law declared in *S. v. Goodson,*107 N. C., 798, is pertinent to tbe facts disclosed in ibis case. Goodson was convicted of murder and sentenced to death. The Court said: “We have examined with much care and scrutiny the evidence sent up as part of the case stated on appeal, and are of opinion that it was not sufficient to prove the prisoner’s guilt, or to go to the jury for that purpose. Accepting tbe evidence as true, and sufficient to .prove tbe facts to wbicb it .related, and giving these facts, severally and collectively, and in their bearing each upon tbe other, due weight, in any view of them they simply raise a strong suspicion of bis guilt. Tbe evidence pointing to tbe prisoner is circumstantial. Tbe facts may be true; they may be taken, in any combination of them of wbicb in their nature they are capable, and they fail to prove bis guilt; they are inconclusive as to tbe material fact of guilt. . . . This full summary of tbe incriminating facts, taken in tbe strongest view of them adverse to tbe prisoner, excite suspicion in tbe just mind tbat be is guilty, but such view is far from excluding tbe rational conclusion tbat some other unknown person may be tbe guilty party. Tbe mind is not simply left in a state of hesitancy and anxious doubt — it refuses to reach a conclusion.”

So, in tbe present case, much could perhaps be written upon tbe various aspects of circumstantial evidence as a means of arriving at ultimate truth. Much, too, could be written with reference to weighing these circumstances and knitting them together in various and sundry combinations. But after all, tbe whole matter resolves itself into an interpretation of tbe record. As to this, different minds will reach different conclusions. Although we should assemble tbe precedents and authorities in martial array and dissect each one, tbe inevitable and ultimate question would still be ever present: “How do you apply these principles to tbe present record?”

After a diligent investigation, by tbe entire Court, of tbe records and briefs, three of us are of tbe opinion tbat tbe circumstances relied upon for conviction create suspicion more or less grave, but do not rise to tbat *22dignity and import which, the law recognizes as competent evidence upon the charge laid in the bill of indictment.' After the same diligent investigation, two of us hold the contrary view.

In this situation, therefore, we hold that the judgment of nonsuit duly made at the close of the entire testimony should have been allowed.

Reversed.

Adams, J.,

dissenting: In *S. v. Carlson,*171 N. C., 823, it was said by this Court: “The motion to nonsuit requires that we should ascertain merely whether there is any evidence to sustain the allegations of the indictment. The same rule applies as in civil cases, and the evidence must receive the most favorable construction in favor of the State for the purpose of determining, its legal sufficiency to convict, leaving its weight to be passed upon by the jury. *S. v. Carmon,*145 N. C., 481; *S. v. Walker,*149 N. C., 527; *S. v. Costner,*127 N. C., 566. The effect of Laws 1913, ch. 73, allowing a motion for nonsuit in a criminal case, was considered in *S. v. Moore,*166 N. C., 371; *S. v. Gibson,*169 N. C., 318. Where the question is whether there is evidence sufficient to warrant a verdict, this Court considers only the testimony favorable to the State, if there is any, discarding that of the prisoner. *S. v. Hart,*116 N. C., 976. The weight of the evidence and the credibility of the witnesses are matters for the jury to pass upon. *S. v. Utley,*126 N. C., 997.”

Discarding the evidence of the defendant and considering that which is favorable to the State, I do not concur in the intimation that the testimony consists of nothing more than certain independent and unconnected circumstances upon which the State relied for conviction. The evidence, as I read it, reveals a series of incidents and circumstances which are so intimately connected, not to say interwoven, as to point directly to the defendant’s guilt. The *corpus delicti*was admitted, it was not denied that the homicide occurred at the home of the deceased after eleven o’clock at night. The evidence tended to show that at this hour only three persons were in the house: the deceased and the defendant on one floor, and the registered nurse on another. There was evidence of the defendant’s motive and opportunity for the commission of the crime, and her ill-will and purpose, of the significant circumstances under which she left Mrs. Cooper’s on the morning preceding the homicide to go to West Asheville, of her admission that “when dark came” Mrs. Cooper kept coming into her mind, and that she knew “that something was going to happen to Mrs. Cooper,” of the late hour of her return to Mrs. Cooper’s home — the assault, her conduct, her inconsistent -statements, her effort to conceal material evidence, and *23ber possession of garments, one of them bloody, owned by Mrs. Cooper and concealed in the defendant’s trunk, with other articles which were damp, soon after the homicide. These are only a part of the series of circumstances which were submitted to the jury in a full and discriminating charge. Not only is circumstantial evidence an accepted instrumentality in the ascertainment of truth; it is essential to the administration of justice, and in my opinion its efficacy should be maintained unimpaired.

I am authorized to say that the Chief Justice concurs in this opinion.