State v. Murphy

Winborne, J.

Exception to the refusal of the court to grant motions of defendants aptly made and preserved for judgment of nonsuit, G. S., 15-173, as to the charge of robbery, is well taken, and must be sustained. In considering such motions under provisions of G. S., 15-173, the general rule is that “if there be any evidence to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.” But where there is merely a suspicion or conjecture in regard to the charge in the bill of indictment against defendant, the motion for judgment of nonsuit will be allowed, S. v. Johnson, 199 N. C., 429 , 154 S. E., 730 , and numer *117 ous other decisions of this Court, including S. v. Boyd, 223 N. C., 79 , 25 S. E. (2d), 456 , where the authorities are assembled.

Applying these principles to the present case, we are of opinion that the evidence discloses no more than an opportunity for the defendants to take the money. And the evidence shows an equal opportunity for others to have taken the money. Under such circumstances to find that any particular person took the money is to enter the realm of speculation, and verdicts so found may not stand.

But as to the count in the bill of indictment in the present case charging an assault, there is sufficient evidence to sustain a verdict of guilty. Here there is a general verdict of guilty. And where there is such a verdict on a bill of indictment containing two' or more counts charging distinct offenses, the court can impose a sentence on each count. That is, if the verdict on any count be free from valid objection and has evidence tending to support it, the conviction and sentence for that offense will be upheld.

S. v. Graham,, 224 N. C., 347 , 30 S. E. (2d), 154 , and cases cited. However, the sentences imposed in the judgment below are greater than is allowed by law for a conviction for an assault. Hence, while there may not be a new trial, S. v. Toole, 106 N. C., 736 , 11 S. E., 168 , the sentences imposed will be set aside and the cause remanded for proper judgment.

S. v. Graham, supra; S. v. Cody, 224 N. C., 470 , 31 S. E. (2d), 445 .

Other assignments of error have been examined, and are found to be without merit.

Error and remanded.