State v. . Thompson

(S. v. Rush, 12 Ired., 382; S. v. Gailor, 71 N.C. 88; S. v. Green,92 N.C. 779; Aycock v. R. R., 89 N.C. 321; cited and approved.) The facts appear in the opinion. The defendant is charged with setting fire to and burning an outhouse belonging to Charles Gerock, in an indictment containing four counts, in two of which it is simply described as an outhouse, and in the others with the superadded words, "used as a kitchen." The counts omit to aver the "intent thereby to injure or defraud," which is an essential ingredient in the offense created under paragraph 6, of section 985, of The Code, but which are rendered unnecessary by the amendment of 1885, chapter 66, which strikes out those words. The defendant was tried and convicted before the jury, and these exceptions were taken during its progress, and brought up by the defendant's appeal.

I. The State, after objection made and overruled, was permitted to show that at the same hour, and on the same night when the outhouse was burned, the dwelling-house, some fifteen yards off, was also attempted to be set fire to, by means of fagots of wood, tied up with a rope belonging to the defendant, while both buildings had been saturated in places with kerosene oil.

This evidence was received, as tending to show that the same person had fired both at the same time.

II. In like manner, after objection, in order to show a motive, evidence was admitted, of declarations of the defendant, made shortly before, of threats to do injury to the son and grandson of the occupant of the premises. It was in proof that the father, Charles Gerock, and his wife, were old and decrepit, and lived by themselves, about a half mile from that son, who had himself several grown sons, and a party at his house on that night. Another son resided still nearer to that brother.

There was no error in admitting the evidence, which tended, (498) to what extent the jury was to decide, to identify the person who committed the outrage. The circumstances strongly pointed to a single agency, and with the ownership of the rope, with which the kindling materials were bound, to the defendant as the guilty author of both of the firings. The facts proved are parts of one continuing transaction, and are but the development of the conduct of the person by whom the successive acts were done; 1 Whar. Cr. Law, sec. 649. The proof of threats directed against the son and grandson, from their near relationship to the owner of the burned house, was also relevant, though perhaps feeble, in showing general ill-will to the family, and a motive for the act. S. v. Rush, 12 Ired., 382; S. v. Gailor, 71 N. C; 88; S. v. Green,92 N.C. 779.

The defendant moved in arrest of judgment, for that no proof had been offered of property in the alleged owner of the outhouse, other than possession.

The exception, if properly taken, must be to the failure of the proof introduced to sustain the averments as to the ownership of the outhouse, and this must be on the trial. It is too late after verdict, and never furnishes cause for arresting judgment.

But if the objection had been in apt time, it would have been overruled, because possession unquestioned, is sufficient evidence of property to warrant the verdict. This is ruled in S. v. Gailor, ante; Aycock v. R. R.,89 N.C. 321.

It may admit of question, if the facts be as stated in the case, that the house burned was "within the curtilage" and appurtenant to the dwelling-house occupied by the said Charles Gerock as his residence, whether the offense was not in law a capital felony, but the solicitor has chosen to put his accusation in a milder form, and his humanity leaves no just grounds of complaint of the charge or of the proof offered in its support. (499)

There is no error, and the judgment must be affirmed.

No error. Affirmed.

Cited: S. v. Weaver, 104 N.C. 761; S. v. Rhodes, 111 N.C. 650; S. v.Jeffries, 117 N.C. 729; S. v. Lytle, ibid., 802; S. v. Daniel, 121 N.C. 576;S. v. Graham, ibid., 628; S. v. Shines, 125 N.C. 732; S. v. Battle,126 N.C. 1041; S. v. Adams, 138 N.C. 694; S. v. Sprouse, 150 N.C. 861;S. v. Clark, 173 N.C. 745; S. v. Deadmon, 195 N.C. 707.