dissent">Judge WEBB

dissenting.

I dissent on the ground that the instructions on circumstantial evidence violate the rule of State v. Lowther, 265 N.C. 315, 144 S.E. 2d 64 (1965). The judge in his charge followed almost verbatim the Pattern Jury Instructions, NCPI —Crim. 104.06. I am aware that the instructions on circumstantial evidence were recently changed to the form in which Judge Collier gave them. I do not understand why they were changed. As I read Lowther, no set form of words is required, but the jury must be told in substance that the circumstantial evidence must point unerringly to guilt and exclude to a moral certainty every other reasonable hypothesis except that of guilt. I do not believe the instructions in this case did so.

The majority relies on State v. Westbrook, 279 N.C. 18, 181 S.E. 2d 572 (1971). In that case, the judge instructed the jury that one of the theories upon which the State was proceeding was that the defendant was acting in concert with another person and that community of purpose could be shown by circumstances as well as by direct evidence. The court instructed the jury that they must be satisfied beyond a reasonable doubt that the defendant was acting as a part of a common plan. The Supreme Court held this to be sufficient. In this case, the judge charged the jury as to circumstantial evidence that they must be satisfied “beyond a reasonable doubt that not only is the circumstantial evidence . . . consistent with the defendant being guilty but that it is inconsistent with his being innocent.” I believe this was error, and I vote to reverse.

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