State v. Cuthrell , 233 N.C. 274 ( 1951 )

63 S.E.2d 549 (1951) 233 N.C. 274

STATE
v.
CUTHRELL.

No. 2.

Supreme Court of North Carolina.

February 28, 1951.

John A. Wilkinson and H. S. Ward, Washington, for the defendant-appellant.

Attorney General Harry McMullan and Walter F. Brinkley, member of the Attorney General's staff, Raleigh, for the State.

ERVIN, Justice.

The first count in the indictment is bottomed upon the statute codified as G.S. § 14-62.

A plea of not guilty to a criminal charge puts in issue every fact necessary to establish the guilt of the accused. State v. Meyers, 190 N.C. 239, 129 S.E. 600; State v. Hardy, 189 N.C. 799, 128 S.E. 152.

Where such plea is entered in a prosecution for common law arson or for the statutory felony of burning a building contrary to G.S. § 14-62, it is incumbent on the State to prove both the corpus delicti, and the connection of the accused with the crime. 6 C.J.S., Arson, § 29. The corpus delicti in such prosecution consists of two elements: the fire, and the cause of the fire. Annotation, 13 Ann.Cas. 803-804. The fire must be incendiary in origin. State v. Church, 202 N.C. 692, 163 S.E. 874.

The statement of Sheriff Stevens, who visited the premises subsequent to the fire, that in his opinion the building was "set afire" is clearly incompetent. This is not a case for opinion evidence. The physical facts, which are the subject of the investigation, are so simple that they can be readily understood by the jury when properly described by the witness, and the jury is as well qualified as the witness to draw the appropriate inference from them. Stansbury on North Carolina Evidence, section 124; Wigmore on Evidence, 3d Ed., section 1926.

The conclusion that the trial judge erred in admitting the statement of Sheriff Stevens has explicit support in well considered cases in other jurisdictions expressly excluding evidence of opinions of witnesses as to the incendiary nature of fires. State v. Nolan, 48 Kan. 723, 29 P. 568, 30 P. 486; People v. Grutz, 212 N.Y. 72, 105 N.E. 843, L.R.A.1915D, 229, Ann.Cas.1915D, 167. See also: Sawyer v. State, 100 Fla. 1603, 132 So. 188; Wharton's Criminal Evidence, 11th Ed., section 956. It likewise has implicit support in our own decisions concerning related evidential matters. Deppe v. Atlantic Coast Line R. R. Co., 154 N.C. 523, 70 S.E. 622; Cogdell v. Wilmington & W. R. R. Co., 132 N.C. 852, 44 S.E. 618; Burwell v. Sneed, 104 N.C. 118, 10 S.E. 152.

The defendant's plea of not guilty denied the existence of the corpus delicti, and thus raised the precise issue whether the defendant's alleged accomplice, Bobby Gene Bowers, wantonly and willfully burned the building in question. The opinion of Sheriff Stevens, the chief law enforcement officer of Camden County, that the fire was of incendiary origin may have tipped the scales in favor of the prosecution, and induced the jury to resolve this crucial issue against the accused. This being so, the receipt of such opinion in evidence constitutes prejudicial error, entitling the defendant to a

New trial.