State v. . Purdie , 67 N.C. 326 ( 1872 )

The following statement was made out by the presiding Judge:

The defendant was indicted for maliciously setting fire to and burning the woods of one R. P. Booe, on 8 April, 1871. The prosecutor, about 11 o'clock, being at his residence discovered, rising from the woods on the next side of his plantation, volumes of smokes; the direction of the wind was from the west and southwest in a direction across his plantation, and towards that of the defendant, who lived less than a half mile from the prosecutor, and east of him; approaching the fires, he found that they had been started from three different points, about three hundred yards from each other. His neighbors rallied to his relief in considerable numbers, and the fires were suppressed with little damage, except the loss of about six hundred panels of fence. The defendant, who lived one-fourth or one-half mile distant, did not aid in extinguishing the fire, while several neighbors, from several miles distant, did aid. The defendant offered in evidence the testimony of one Armstrong, tending to show that defendant, about 9 o'clock a. m. of the day of the fire, stopped at his house, about three miles from the place of the fire and said he was (327) unwell, and was on his way to Dr. Hampton's; about two o'clock he returned to the house of the same witness, or to the blacksmith shop near by; at this time the neighbors were hurrying by him to aid in extinguishing the fire, but defendant did not go, but continued at the shop; it did not appear how long. Counsel proposed to give evidence of the defendant's declarations of the motive of his stopping. This evidence was rejected by the Court; defendants excepted.

From Dr. Hampton's to defendant's is about six miles. In the evening of the same day, after the fire, one of the neighbors, who was returning from the scene of the fire, stopped at defendant's house, he inquired whether Booe suffered much damage, and whom he suspected; next day he averred he could prove his family and himself clear. It was suggested that the fire was accidental, the Court called the attention of the jury to the suggestion, and told them to consider the circumstances, as proved, attending the beginning of the fires, their direction and progress, and see whether their recollection and application of the evidence enabled them to infer the probability that the fire was the result of accident. Counsel of defendant excepted. One Sprinkle was a witness called for the State. He was asked on cross-examination, if he had not heard his own character proven to be bad in Court; he answered the question that he had, by his enemies; he was also asked if an indictment for perjury had not been sent against him; he answered that it had been. The Court then interposed, and said he would not allow such an examination to be repeated. Defendant tendered himself as a witness, to rebut the threats sworn to by the prosecutor; his testimony for that purpose was rejected. Defendant excepted.

There was a verdict against the defendant. He moved for a new trial, which was refused. There was a motion in arrest of judgment because the indictment did not charge that the woods burnt were not the property of the defendant. Motion overruled. Defendant appealed. There is no ground for a new trial. The defendant asked the witness, Sprinkle, "if he had not heard his own character proven in Court to be bad." This question was answered.

This witness was then asked if an indictment for perjury had not been sent to the grand jury of Wilkes against him. This question was answered by the witness. The Court then interposed, saying that he would not allow such an examination to be repeated. No further question was asked this witness. The defendant excepted. That this exception can not avail the defendant, has been repeatedly decided by this Court.

To avail himself of error in the rejection of evidence, the party must show, distinctly, what the evidence was, in order that its relevancy may appear, and that a prejudice has arisen to him from the rejection. In other words, the error must appear upon the record, as only such as do thus appear can be noticed by the Court. Whitesides v. Purdy, 30 N.C. 431; S.v. Worthington, 64 N.C. 594; Bland v. O'Hagan Ib., 471; Street v. Bryant,65 N.C. 619, and Overman v. Coble, 35 N.C. 1.

It had been proved, that the defendant, about 9 o'clock a. m., of the day of the burning of the woods, had stopped at the house of one Armstrong, on his way to Jonesville, and that about 2 o'clock p. m., of the same day, on his return, he again stopped at the same house, or at a blacksmith shop near by, and at this time the neighbors were hurrying by, to aid in extinguishing the fire, but that the defendant did not do so; but remained at the shop, how long it did not appear. The defendant's counsel then proposed to offer evidence of his declaration of the motive for stopping; to the reception of this evidence objection was made, and it was rejected by the Court. This objection can not be sustained (329) for the same reason as the other.

When these declarations were made it does not appear, whether at the time of stopping, or how long after, nor does it appear what these declarations were. So this Court can neither see that they formed a part of the res gestae as insisted on, or that they were such declarations as could have served the defendant, or had any tendency to disprove, or in any way to modify or diminish the effect of his stopping at the shop, while all the other neighbors were hurrying forward to aid in extinguishing the fire. Therefore there was no error in rejecting the evidence offered.

The motion in arrest of judgment is one of more difficulty. The indictment does not charge, in so many words, that the fire was not set out on the defendant's own land.

But the Court thinks it does charge that which is equivalent, to-wit, that the defendant unlawfully, wilfully and maliciously, did enter upon the lands of one R. P. Booe, there situate, and did then and there wilfully and unlawfully set fire to, and burn the leaves, and stuff, and timber, on said lands, and did then and there unlawfully and wilfully set fire to burn, destroy, and consume the fences on said land, about and surrounding the cultivated fields of said Booe on said land, etc. This we think is equivalent to the allegation not on his own lands, and that, after alleging that the fire was set on the land of the prosecutor, Booe, it be tautological to have added to this, not on the land of the defendant.

Whether before the Act, Rev. Code, ch. 35, sec. 20, this indictment would have been sufficient or not, it is unnecessary to decide, as since that act we think the indictment sufficient.

PER CURIAM. No Error.

Cited: Outlaw v. Farmer, 71 N.C. 33; Knight v. Killebrew, 86 N.C. 402;Stout v. Turnpike Co., 157 N.C. 368.

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