¶1dissenting. I concur in the judgment of the Court, because, in my opinion, there was no evidence offered tending to establish a sale, but on the contrary, the evidence disproved the idea of a sale altogether.
¶2But I do not concur in the propositions laid down as the principles of evidence, in this State, or in the line of dernarkation drawn between the rights of the Court and the rights of the jury in the administration of justice. I regard these propositions now distinctly announced for the first time, in our Courts as new, opposed to a long line of uniform decisions, and as subversive of that bulwark of all our individual rights, to wit, the right of trial by jury.
¶3The opinion delivered admits the rule of evidence as announced in 1 Greenl., sec. 49, to wit, that “ whether there be any evidence or not, is a question for the Judge; whether it is sufficient evidence, is a question for the jury,” but undertakes to give a construction to “ any ” which destroys the plain meaning of a plain word and thus introduces the new and dangerous proposition contended for. It is now announced that the true meaning of “ any evidence ” is that it must be such “ as ought reasonably to satisfy the jury that the fact sought to be established is proved.” That it is not enough to say that there was some evidence, but it must be evidence on which they might reasonably and properly come to the conclusion to be arrived at.
¶4The very cases relied on admit that the rule now set up is a new one, established by a train of late English decisions, and that they have overturned the long established law of evidence, that if there was any evidence — even a scintilla — it was necessary, in all cases, that it should go to the jury. Now, when *459did this confessedly new doctrine of the Courts of England become the law in North Carolina, and what decisions of our own Courts have formerly announced this innovation ? The State v. Vinson, 63 N. C. Rep., is cited as having done so. That case certainly does not profess to establish the rule contended for, but after laying down the true principle, as well understood in our State, and as governing that case, the Court obiter proceeds thus: “We may go farther and say, that the evidence must be such as will support a reasonable inference of the fact in issue.” A new proposition of such importance, announced in this tentative language, cannot be held as an authoritative exposition of the law. The State v. Vinson, has not met the approbation of the profession, and as an authority I think it must be confined to the case decided. It professes to be governed by the previous decisions of this Court, and so far as it may be inconsistent, it must give way to a long line of uniform adjudications upon this very question.
¶5The rule laid down and uniformly adhered to in all the other cases, when properly understood, is that “ where there is any evidence tending to establish a material fact in issue, the weight and sufficiency of the evidence are solely for the jury.” So far has this Court gone in support of this rule, that in McRae v. Morrison, 13 Ired. 48, the Court say, that “ the impression of a witness who professes to have any recollection at all, is certainly some evidence ; the degree of weight to which it is entitled is a matter for the jury.” And in the instructive case of the State v. Allen, 3 Jones, 257, where the question is thoroughly discussed, the Court say, “Where there is a defect or entire absence of evidence, it is the duty of the Judge so to instruct the jury, but if there be any competent evidence, relevant and tending to prove the matter in issue, it is the true office and province of the jury to pass upon it, although the evidence may be so slight that any one may exclaim, 1 Certainly no jury will find the fact upon such insufficient evidence.5 Still the Judge has no right to put his opinion in the way of *460the free action of the jury.” And the Court there deprecates any error that majT have crept into our practice, by reason of our Court not having attached due importance to the distinction between the condition of things in England, where the Courts are allowed to express to the jury their opinion of the weight and sufficiency of testimony, and the condition of things in our State, whei'e the trial'by jury is protected both by the Constitution and by legislative enactment. “In all controversies of law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.” Constitution, Art. 1, sec. 19. And to carry into effect this fundamental principle, it is provided, C. C. P., sec. 237, that “ no Judge shall give an opinion, in his charge to the jury, whether a fact is fully or sufficiently proved, such matter being the true office and province of the jury.” "When our organic law has thus announced that the trial by jury is an institution to be cherished by every free people, as the best safeguard to their lives and property, and as such must remain sacred and inviolable, and when by legislative act the line of distinction is so clearly drawn between the rights of the Court and the jury, it becomes the solemn duty of this Court, while preserving its own rights, to be equally zealous to see that the Court shall commit no usurpation upon “ the true office and province of the jury.”
¶6How the jury, whose exclusive province it is, can pass upon the “ weight and sufficiency ” of the testimony, when the Court may exclude it from their consideration altogether, because the evidence offered seems to it not “ reasonably sufficient ” to establish the fact sought to be proved, is to me, incomprehensible. The very weight and sufficiency must depend upon its reasonableness, and to say that the jury shall consider the weight and sufficiency of that testimony only, which the Court may consider reasonable and proper to produce belief in their minds, is in substance and effect to say that the quantum of evidence required by the jury to produce belief in their minds, is a ques*461tion for the Court. The proposition thus broadly stated, of course, cannot be maintained, and will not be affirmed by any one, yet it is the logical and inevitable sequence of the doctrine advanced in the opinion of the Court. Cobb v. Fogleman, 1 Ired., 440, is in harmony with these views, and the distinction is there drawn between “ defect of evidence and evidence confessedly slightand in Allen’s case, Cobb v. Fogleman, is reviewed, and defect of evidence is explained to be a failure of evidence or no evidence at all, but that any evidence, however slight, cannot be withheld from the jury, and this illustration is put: “ it is proved that goods are found in the possession of the prisoner, twelvemonths after the larceny was committed; every one would say, this is not sufficient evidence to convict; but yet it is some evidence. And in the same case it is held, that a fact, calculated to form a link “ in the chain, although the other links are not supplied, is, nevertheless, some evidence tending to establish the fact in issue, and its sufficiency must be passed on by the j ury.” Upon what principle, then, can the Court assume to pass upon the reasonableness of evidence to produce belief, and admit or reject it, as it may take .the one or the other view of it ? And upon what principle can ir exclude any,1 even a scintilla of evidence, from the jury % A scintilla of evidence is some evidence, fcr it is a scintilla of evidence; and if the law is administered, it must go to the jury, and the Court has no more power to withhold it, than to withhold the most positive material fact offered in evidence. The theory of the books is, and every practitioner knows, that the very slightest oral testimony before the jury, from the demeanor, character and surround'ngs of the witness, may, and often does, become potent and convincing proof. How then can this Court, which can only see the recorded testimony, which is no transcript of the living and visible evidence, as it appeared to the jury, and justly determined their verdict, undertake to say that the evidence was not reasonably sufficient to produce belief?
¶7*462The truth is, that whenever we depart from the plain letter of the law, and long and uniform interpretations of the law, we throw doubt and distrust upon its administration.
¶8The Court and jury are distinct and independant, though co-operating tribunals, with this difference, that the jury is the especial favorite, and its rights are carefully surrounded by the solemn guarantees of the Constitution, as well as the laws. The rightful jurisdiction of the jury, then must be protected and enforced against every encroachment, open or concealed, as the one dearest to a free people.
¶9It is admitted that the later English cases, cited in the opinion of the Court, do establish the principle asserted in the opinion, and the same principle may be found in some of the American cases, but it will be found that in all such cases the Court claims and exercises the right of expressing to the jury its opinion as to the weight and sufficiency of the evidence, a claim sternly forbidden by our Constitution and laws. Even in our State, the Courts have at times, prone to follow English precedents and forgetful of the injunction of our organic and statutory laws, deviated somewhat from the true principle here contended for, but these deviations have seldom occurred and have afterwards been acknowledged and corrected, as in Allen’s case; and upon the whole, the Judiciary of North Carolina, while maintaining its own just rights, has vindicated the ancient and time honored jurisdiction and privileges of the jury, as the trier of facts.