
    STATE v. AUSTIN.
    (Filed November 26, 1901.)
    
      EVIDENCE — Competency—Larceny.
    Where, upon trial of an indictment for larceny of money, it appears in evidence that on the second day after the imprisonment of the defendant a hag containing $35 in money was found lying exposed in a public lot, and there was no evidence tending to show that the defendant had put it there, it was error for the trial judge to refuse to charge that the finding of the money was not a circumstance to be considered against the defendant.
    INDICTMENT against I. E. Austin, beard by Judge A. L. Goble and a jury, at September Term, 1901, of tbe Superior Court of Rowan County. Erom a verdict of guilty and judgment tbereon, tbe defendant appealed.
    
      Brown Shepherd, for Robert D. Gilmer, Attorney-General, for tbe State.
    
      T. F. Kluttz, for tbe defendant.
   Douglas, J.

Tbis is a conviction for tbe larceny of money from one Surratt. Tbe evidence is entirely circumstantial. There are various exceptions, but only one tbat we tbint necessary to consider. Tbe defendant’s sixteenth prayer for instruction is as follows: “In tbis case there is no evidence tbat tbe lot on which tbe bag of money is said to have been found was at any time in tbe actual or constructive possession of tbe defendant, and therefore if tbe jury believe tbat tbe money so found was tbe property of Surratt, no presumption of defendant’s guilt is raised thereby, as tbe defendant bad no dominion or control over said premises (and tbe alleged finding of said money on said lot is not a circumstance against tbe defendant in tbis case).” His Honor gave tbe instruction as asked, except the latter part that is in parenthesis. This, we think, he should have given in view of the evidence. It appears from the evidence that the defendant was arrested and put in jail on the night or evening of July 3d, and remained in jail for mo.re than a month. In the afternoon of the second day after his arrest and imprisonment, one of the witnesses found $35 in money in a shot-sack, lying exposed in a public lot used as a camping lot. It does not appear how it got there, and there is no evidence tending to show that the defendant had put it there. It does appear -that he was held in close custody after his arrest, and had no opportunity thereafter of getting to the lot. The loss of the money seems to have been generally known, and it seems improbable that it should have lain in so public a place for two days without attracting attention. The mere fact of its being found there under such circumstances is no evidence that the defendant put it there, and therefore no evidence of his guilt. Everyone of the general public had equal facilities for putting it there with the defendant. It is true they did not all have equal facilities for stealing it, but while that fact might be a circumstance to go to the jury, it is not corroborated by the further fact of the money being found in a public lot, two days after the defendant’s imprisonment.

Circumstantial evidence may be of two kinds, consisting either of a number of consecutive links, each depending upon the other; or a number of independent circumstances all pointing in the same direction. In the former case, it is said that each link must be complete in itself, and that the resulting chain can not be stronger than its weakest link. In the latter case, the individual circumstances are compared to the strands in a rope, where no one of them may be sufficient in itself, but all together may be strong enough to prove the guilt of the defendant beyond a reasonable doubt. But it necessarily follows that in either case every individual circumstance must in itself at least tend to prove tbe defendant’s guilt before it can be admitted as evidence. No possible accumulation of irrelevant facts could ever satisfy tbe minds of tbe jury beyond a reasonable doubt.

His Honor properly charged that, “In order to justify tbe inference of guilt from circumstantial evidence, tbe incul-patory facts must be incompatible with tbe innocence of tbe accused, and incapable of explanation upon any other reasonable hypothesis than that of bis guilt.” In furtherance of this instruction, and as its natural corollary, be should have instructed tbe jury under tbe facts of this case that tbe mere finding of tbe money in tbe public lot did not tend to prove tbe guilt of tbe defendant, and therefore should not be considered by them. Eor bis failure to do so at tbe prayer of the defendant, a new trial must be ordered.

New Trial.  