During the night of 28 July, 1928, the dwelling-house and barn of O. F. Sofley, in Yadkin County, North Carolina, were de*377stroyed by fire; at tbe same time tbe garage, located on bis premises, near tbe dwelling-bouse and barn, was damaged by fire. Weeds growing near tbe garage were burned; tbe weatber-boarding and roof of tbe garage were scorched, but tbe building was not destroyed.
There was evidence on behalf of tbe State tending to show that tbe fires which destroyed tbe dwelling-bouse and barn, and damaged tbe garage, were separate and distinct, and that each of said fires was of incendiary origin. Tbe fires were first discovered by C. F. Sofley between 11 and 12 o’clock at night. He and bis family bad gone to bed at about 9 o’clock and were asleep when they were awakened by tbe fire which destroyed their home. Tbe barn and garage were then on fire and burning.
There was evidence tending to show that gasoline bad been used to start each of tbe fires. Witnesses for tbe State testified that they saw three men walking on tbe highway a short distance from Sofley’s home on tbe night of tbe fire, about 30 minutes before tbe fires were discovered. These men pulled their caps down over their eyes and turned their beads as tbe witnesses, riding in an automobile, passed them. Neither of witnesses recognized tbe men, or was able to identify them or either of them. One of tbe witnesses was of tbe opinion that all three were white men.
Tracks near tbe barn and tbe garage were discovered tbe morning after tbe fire. Some of these tracks led away from tbe premises in tbe general direction of tbe home of Jack Hunt, which is at a distance of about a mile from tbe home of C. F. Sofley. A short time before tbe fire Jack Hunt bad been arrested on a warrant, procured upon information furnished by C. F. Sofley, charging him with tbe unlawful sale of intoxicating liquor. Shoes were found at bis home which fitted some of tbe tracks which were discovered on tbe premises of C. F. Sofley. Jack Hunt was arrested and at a previous term of tbe court bad entered a plea of guilty to house-burning. He bad been sentenced to serve a term of ten years in tbe State’s prison upon this plea, and is now serving this sentence.
Upon tbe trial of tbe defendants in this action tbe State relied upon tbe testimony of Jack Hunt as evidence to sustain its contention that defendant, John Freeman, set fire to tbe dwelling-house; that defendant, Dock Caudill, set fire to tbe barn, and that tbe witness, Jack Hunt, set fire to tbe garage, and that they bad set fire to tbe buildings pursuant to a conspiracy entered into by and between them to burn said buildings because C. F. Sofley bad caused tbe arrest of Jack Hunt for selling liquor. Tbe testimony of Jack Hunt, if believed, was amply sufficient as evidence to sustain tbe contentions of tbe State that both tbe defendants are guilty as charged in tbe indictment.
*378There was evidence of facts and circumstances which tended to support the testimony of Jack Hunt. Each of the defendants offered evidence in contradiction of the testimony of Jack Hunt. The evidence for each of the defendants tended to sustain his contention that he had not entered into a conspiracy with Jack Hunt to burn the buildings of C. E. Sofley, as testified by him, and that he was elsewhere when the buildings were burned.
All the evidence was submitted to the jury under instructions which are free from error. The court instructed the jury that they should consider the fact as testified by him that Jack Hunt was an accomplice of the defendants in the commission of the crime for which they were on trial, and that for this reason they should scrutinize his testimony with great care and not accept such testimony as evidence unl.ess they found beyond a reasonable doubt that it was true. The instruction in this regard was in full compliance with the principles stated in S. v. Ashburn, 187 N. C., 717, 122 S. E., 833. It was within the province of the jury to accept the testimony of Jack Hunt, in part, and to reject it, in part, and thus to convict the defendant, John Freeman, and to acquit the defendant, Dock Caudill. In the absence of error in the decisions of the trial court upon matters of law or legal inference, this Court is ordinarily without jurisdiction to grant a new trial to the defendant, John Freeman, upon his appeal from the judgment which is supported by the verdict. Constitution of N. C., Art., IV, sec. 8. The jury believed the evidence offered by the defendant, Dock Caudill, tending to establish his defense based upon an alibi, and rejected the evidence offered by the defendant, John Freeman, to establish-a similar defense. This was within their province, and the judgment and verdict cannot be set aside and a new trial granted by this Court, in the exercise of its appellate jurisdiction, for the reason that we find no error in the record.
The defendant, John Freeman was at his home when he was arrested on a warrant charging him with arson. His wife was present at the time of the arrest, and in the presence of the officers said to him, “I told you, John, that you would get into it if you did not stay with me like I wanted you to do.” He replied to her, “Hush.”
Defendant’s exception to the refusal of the court to sustain his objection to this evidence cannot be sustained. The objection was properly overruled upon the authority of S. v. Randall, 170 N. C., 757, 87 S. E., 227. In the opinion in that ease it is said that conversations between husband and wife are not privileged as confidential, so as.to prevent a third person who overheard them, from relating them to the jury. The statute in this State (C. S., 1802), which provides that no husband or wife shall be compellable to disclose a confidential communication made *379by one to the other during their marriage, and that neither shall be competent or compellable to give evidence against the other in a criminal •action, has no application, for the reason that the conversation between defendant and his wife was not a confidential communication, and for the further reason that the wife did not undertake to give evidence against her husband as in S. v. Aswell, 193 N. C., 399, 137 S. E., 174, nor was she under cross-examination as a witness for her husband as in S. v. Adams, 193 N. C., 581, 137 S. E., 657. Defendant’s reply to the remark of his wife to him, made in the presence of the officers, was competent as evidence against him. The remark of his wife, taken together with his reply to her, was properly admitted as evidence. S. v. McKinney, 175 N. C., 784, 95 S. E., 162.
The evidence upon the trial of this case was amply sufficient to sustain the conviction of both defendants and of the witness, Jack Hunt, for arson. Jack Hunt upon an indictment for arson tendered a plea of guilty of house-burning, which was accepted by the State. He is now serving a term in the State’s prison. Defendant, Dock Caudill, was acquitted by the jury, and he has been discharged. Defendant, John Freeman, was convicted, and the judgment that he suffer death, from which he appealed, must be affirmed, for we find no error of law in his trial.
No error.
Stacy, C. J., dissenting.
BeogdeN, J., dissenting opinion.