State v. Jackson
State v. Jackson
Opinion of the Court
The defendant assigns error to the denial of his motion to dismiss at the close of all the evidence. We believe this assignment of error is well taken. The evidence against the defendant is that he was in the presence of Mr. Williams, who was identified as one of two men who stole Mr. Thorne’s boat, before and after the boat was taken. The defendant testified he was with Mr. Williams all evening but they did not take the boat. We do not believe this is substantial evidence that the defendant took the boat. The defendant’s testimony that he was with Mr. Williams all evening and neither one of them took the boat is evidence that Mr. Williams did not take the boat and not evidence that the defendant took it.
We do not believe the testimony of Mr. Nesmith is helpful to the State. He did state that he saw both defendants in the truck at the time the boat was being pulled away from Mr. Thorne’s
We hold there was not substantial evidence of the defendant’s guilt and the motion to dismiss should have been allowed. See State v. Smith, 40 N.C. App. 72, 252 S.E. 2d 535 (1979).
Reversed and remanded.
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