State v. . Rogers ( 1914 )

The defendant was convicted on an indictment for "willfully and feloniously setting fire to a certain ginhouse, the property of W. B. Hopkins, with intent to burn and destroy the same." S. v. Purdie,67 N.C. 25; S. v. Pierce, 123 N.C. 745. The indictment was sufficient both under Revisal, 3336 and 3341, and it was immaterial under which, as the punishment inflicted was within the limits prescribed for either. Revisal, 3336, covers a willful attempt to burn a "cotton gin," which from the context evidently means the same thing as a "ginhouse." Revisal, 3341, makes punishable the willful burning of any "ginhouse." Here the ginhouse was set fire to, but not consumed. The form here used was held sufficient in S. v. Green, 92 N.C. 779, and is substantially the same as that used in the other two cases above cited.

The tendency formerly prevailing in criminal proceedings was checked by the statutes, now Revisal, 3254 and 3255, which prohibit such (114) proceedings to be "quashed or judgment reversed by reason of any informality or refinement, if they express the charge in a plain, intelligible, and explicit manner." The whole course of this trial shows that the defendant was fully informed of the charge against him and for what he was being tried. He was at no disadvantage on that ground, and there is no other object in the indictment. The motion in arrest of judgment was properly denied. The "charring" was sufficient proof of a "burning," even in a charge for arson. S. v. Hall, 93 N.C. 573.

The witness Hopkins was permitted to use a map "for the purpose of explaining the testimony of the witness." This was competent, and is very often resorted to, both in civil and criminal procedure. Arrowood v. R. R.,126 N.C. 629; Tankard v. R. R., 117 N.C. 558; Riddle v. Germanton, ibid., 388, and cases there cited; S. v. Wilcox (murder), 132 N.C. 1120, and S. v.Harrison, 145 N.C. 408 (for kidnapping). Both these latter cases were thoroughly contested, but the Court affirmed its previous ruling on this point in S. v. Whiteacre, 98 N.C. 753, and Dobson v. Whisenhant,101 N.C. 645. It is true the witness said the map was "approximately correct." It could hardly have been otherwise, being made at the time and merely to illustrate his evidence. This did not render the map incompetent as a part of his testimony, for the defendant doubtless made the most of it by arguing that therefore his whole testimony was only approximately correct. But that was a matter for the jury.

The witness stated that on discovery of the fire, which was blazing up 2 feet or more, he ran to the ginhouse and saw the defendant running away, "whom he distinctly recognized, aided by the light from the fire; that he was well acquainted with defendant, having known him ever since he was a little boy." The solicitor then asked: "Have you any doubt as to the defendant being the man?" The objection made was overruled, and the witness answered, "No." The testimony was competent. S. v. Lytle, 117 N.C. 799. Nor can we sustain exception 3, which pointed to no particular part of the testimony. Exceptions to evidence must be specific. S. v. English,164 N.C. 498. At most, the evidence was merely irrelevant, and hence possibly a needless consumption of the time of the court, but it was not legally prejudicial to the defendant.

The evidence in regard to the defendant being refused credit at the store of the owner of the ginhouse, and the defendant's remarks about it, was competent as tending to show motive, taken in connection with other evidence offered for the same purpose. The testimony of King that Hopkins told him on the night of the fire that the defendant had fired his ginhouse was competent as corroborative evidence. S. v. Maultsby, 130 N.C. 664; S.v. Rowe, 98 N.C. 629; S. v. Parish, 79 N.C. 610.

The defendant excepted to the solicitor's argument containing (115) strictures upon defendant's counsel, because calculated to prejudice the jury against the defendant. The judge states in the case on appeal that "defendant's counsel in his argument referred to what he knew personally in regard to the location and surroundings, without having given it in evidence, and had criticised the testimony of the prosecutor because at variance with the result of his own untestified knowledge of the location. That thereupon the solicitor gave the counsel `notice that if he persisted in that line of argument, he (the solicitor) would reply to it.' But counsel for defendant continued to refer to what he knew personally of the location and surroundings, and criticised the conduct of the prosecuting witness (Hopkins), contending that he was offended because he (the counsel) had gone on his premises to make an inspection." The solicitor, in reply, contended that the conduct of the counsel in riding over the prosecutor's premises in a buggy "with a Negro, inspecting them without the consent of the owner and driving away in disregard of the owner when he had attempted to stop him for the purpose of ascertaining their business, was calculated to irritate." There was more on both sides of this kind of argument (if it can be so styled). It was improper in defendant's counsel to use his personal knowledge of the locality without its being given in testimony. This case differs from S. v.Lee, 166 N.C. 250, where counsel was merely drawing inferences from the testimony.

From the facts as stated by his Honor, it seems that the defendant's counsel made the first transgression. He ought to have been restricted to the evidence given in to the jury. We do not feel called upon to pass upon the query as to which side offended the most against the orderly proceedings of the court and that dignity and seemliness which should always surround a trial in a court of justice. If the defendant did not profit by this unseemly debate we cannot see that he can complain when it was caused by his own counsel. We cannot see that he was in any way prejudiced by it, for the jury were doubtless intelligent enough to understand that they were to try the cause upon the evidence as deposed to by the witnesses and upon the law as laid down by the court. Such controversies should be barred not only by the judge, but by the respect of the counsel on both sides for the occasion. This was, as is usual, merely what Chief Justice Pearson styled "cross-firing with small shot." There is no evidence in the record that the defendant's counsel received worse than he dealt, nor that his client was prejudiced in any way.

The last exception is that the court in its charge said: "Now, I grant you it might have been better (and I am not criticising him) if the defendant's attorney had gone to the man's house and represented to him that he was there for the purpose of making measurements or preparing the case for trial." This was not an intimation of any "opinion (116) whether a fact is fully or sufficiently proven," which is forbidden by chapter 452, Laws 1796, now Revisal, 535. It has been often held that the "facts" referred to are those in dispute on which the liability of defendant depends. S. v. Angel, 29 N.C. 27; S. v. Jacobs,106 N.C. 695, and cases there cited.

We find nothing in the transcript which convinces us that the defendant was in any wise prejudiced by the ruling excepted to.

No error.

Cited: S. v. White, 171 N.C. 786; S. v. Spencer, 176 N.C. 712; S. v.Baldwin, 178 N.C. 691; S. v. Murdock, 183 N.C. 781; S. v. Kee,186 N.C. 475; S. v. Hart, 186 N.C. 603.