
    STATE v. E. W. FREEMAN.
    (Filed 12 October, 1949.)
    Criminal Law § 52a (3) — Circumstantial evidence of defendant’s guilt held insufficient to be submitted to the jury.
    Evidence tending to show that defendant was the owner of a car covered by a chattel mortgage, that he was delinquent in a payment, that the car was struck at a grade crossing at night by a railroad train, that no one was in the car at the time of the collision, and that defendant filed a claim for the damage on a policy of insurance on the car, is held insufficient to be submitted to the jury in a prosecution of defendant for placing the car on the track with intent to destroy it and with presenting a false sworn statement in support of the claim for insurance. Whether the indictment was sufficient to charge an offense under G.S. 14-278, quaere?
    
    Appeal by defendant from Edmundson, Special Judge, April Term,. 1949, Of JOHNSTON.
    The defendant was tried upon a hill of indictment containing two counts: The first count charges that the defendant unlawfully, willfully and feloniously did maliciously place his automobile on the railway track of the Atlantic Coast Line Kailroad Company, with the intent to destroy the automobile and thereby furnish the basis for a claim for loss under the terms of an insurance policy issued to him by Service Fire Insurance-Company of New York. The second count charges the- defendant with presenting a false sworn statement in proof and support of a claim filed with said insurance company, pursuant to the provisions of the aforesaid policy.
    The evidence offered by the State in substance is to the effect that the defendant, the operator of a taxi, left Benson, N. C., about 12 :30 a.m., 5 January, 1949, with several passengers for Dunn, N. 0., which is seven miles South of Benson; that the 1948 Studehaker used by the defendant as a taxicab, was hit by an xLtlantie Coast Line southbound passenger train at 1:27 a.m., on 5 January, 1949, at a railroad crossing two miles north of Benson; that no one was in the car at the time of the collision which completely demolished the automobile; that the defendant signed a statement to the effect that he had parked the car in front of Kis home and failed to lock it; that he did not know whether he left the key in the car or not, but he had been unable to find the key; that he went in the house, took a bath and retired about 12 :30 a.m.; that he knew nothing of tbe wreck until an officer came to bis borne about 3 :30 a.m., whereupon be dressed and went to tbe scene of tbe wreck. It is further disclosed by tbe evidence that tbe defendant bad collision and theft insurance and that he thereafter filed a claim with tbe insurance company for tbe theft of bis automobile; and that be was twelve days delinquent in tbe payment of an installment due on tbe purchase price of tbe ear at tbe time of tbe collision, which was not unusual, for be bad been from 20 to 25 days late in tbe payment of each of bis previous installments.
    Tbe defendant offered no evidence, but moved for judgment as of nonsuit. Tbe motion was overruled and from a verdict of guilty as charged in tbe bill of indictment, and tbe judgment entered pursuant thereto, tbe defendant appeals and assigns error.
    
      Attorney-General McMullan and Assistant Attorney-General Bruton for the State.
    
    
      J. R. Barefoot and Carl E. Gaddy, Jr., for defendant.
    
   Pee CuRiam.

Tbe defendant preserved bis exception to tbe ruling of tbe trial judge in refusing to sustain bis motion for judgment as of non-suit, and assigns such ruling as error. A careful review of tbe evidence leads us to tbe conclusion that tbe exception was well taken and must be sustained.

Moreover, tbe indictment is bottomed on tbe provisions of G.S. 14-278, tbe pertinent part of which reads as follows: “If any person shall willfully and maliciously put or place any matter or thing upon, over or near any railroad track; or shall willfully and maliciously destroy, injure or remove tbe road-bed, or any part therof, or any rail, sill or other part of tbe fixture appurtenant to or constituting or supporting any portion of tbe track of such railroad; or shall willfully and maliciously do any other thing with intent to obstruct, stop, binder, delay or displace tbe cars traveling on such road, or to stop, binder or delay tbe passengers or others passing over tbe same; or shall willfully and maliciously injure tbe road-bed or tbe fixtures aforesaid, or any part thereof, with any other intent whatsoever, such person so offending shall be guilty of a felony, . . .” While it is unnecessary to decide tbe question on this appeal, we doubt that the indictment charges a crime within tbe purview of this statute.

Tbe ruling on tbe motion for judgment as of nonsuit is

Reversed.  