Opinion
(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 evidenced is correctly denied.
APPEAL by defendant from Burgwyn, Special Judge, at September Term, 1937, of HARNETT. No error.
Attorney-General Seawell and Assistant Attorneys-General McMullan and Willis for the State.
J. R. Young and I. R. Williams for defendant.
Defendant was indicted for willfully and wantonly burning a barn, the property of Wilson Lucas. From judgment pronounced on verdict of guilty defendant appealed.
The principal question presented by this appeal is the correctness of the ruling of the court below in denying defendant's motion for judgment as of nonsuit. When this same case was here on the defendant's appeal at Spring Term, 1937 ( 211 N.C. 326), a new trial was awarded for error in the admission of evidence. In that case it was said: "While the evidence was entirely circumstantial, and included testimony as to the action of bloodhounds, admitted for the purpose of corroboration, we are unable to say that this did not constitute more than a scintilla of evidence, and so sufficient to take the case to the jury. S. v. Thompson, 192 N.C. 704."
Substantially the same testimony was presented by the State in this last trial, and again the jury has found the defendant guilty. The motion for judgment of nonsuit was properly denied.
The other exceptions noted at the trial and assigned as error cannot be sustained. We find no sufficient reason to disturb the result of the trial.
No error.