State v. Smith, 225 N.C. 78 (1945)

March 21, 1945 · Supreme Court of North Carolina

225 N.C. 78

STATE v. ERNEST SMITH.

(Filed 21 March, 1945.)

1. Criminal Haw § 42: Evidence § 42b—

In a prosecution for arson, exclamation of a witness, “E. has set the house on fire,” made at the time the fire was discovered on the outside of the house, where the witness had just seen the defendant E., is competent as part of the res gestae.

2. Criminal Haw § 32a—

Testimony of a witness that, on hearing- her daughter screaming, she said to defendant, “E., what in the world is the matter?” and defendant replied that his wife had told a damn lie on him.and he had tried to break her damn neck, is competent in a criminal prosecution for arson, defendant being charged with the burning of his mother-in-law’s home where his wife and daughter had taken refuge in consequence of marital trouble.

3. Criminal Haw § 53g: Trial § 33—

Errors in the court’s statement of the contentions of the parties must be called to the court’s attention in time for the court to have an opportunity to correct them, and a failure to so call them to the court’s attention is a waiver of any objection thereto.

Appeal by defendant from Burgwyn, Special Judge, at October Term, 1944, of JOHNSTON.

Criminal prosecution upon indictment charging defendant with the crime of arson. Gr. S., 14-58.

In the trial court the State offered evidence tending to show these facts: That the two-room house owned and occupied by Lula Stevens, a State’s witness and mother of Connie Smith, wife of defendant, situated in Greytown across the river from Smithfield, was burned between 10 and 12 o’clock on the night of 2 September, 1944; that at that time Connie Smith, wife of defendant, and a child of her and defendant, were in bed in the house; that previously Lula Stevens had had the defendant arrested in connection with trouble between him and his wife, and defendant had threatened to get even with her for “putting the law” on him; that during the afternoon before the lire occurred defendant walked up and down the road in front of the house of Lula Stevens, saying nothing, but looking at her and “rolling his eyes”; that he came to the house and asked if his wife were there, and on being told that she had gone to town, he whirled around and left; that later he came back and said to Lula Stevens, “You got my child in your house and I am going to get even with you”; that later on that night Lula Stevens, hearing a noise at the back corner of her house, opened the door and there saw defendant in reaching distance and saw him run into a cornfield; tbat in a few minutes fire was discovered in tbe corner of tbe bouse on tbe outside, and Lula Stevens exclaimed, “Lord, bave mercy, Ernie bas set tbe bouse on fire”; and tbat sbe called for others to bring water, repeating “Ernie bas set tbe bouse on fire.” Exception by defendant.

Also tbe State was permitted, over objection by defendant, to offer testimony of Lula Stevens tbat previously, wben sbe bad beard ber daughter screaming, sbe bad said to defendant, “Ernie, what in tbe world is tbe matter?” and be replied, “Connie told Danza a damn lie on me and I tried to break ber damn neck.” Exception.

On tbe other band, tbe defendant offered evidence tending to negative tbe evidence of tbe State.

Verdict: Guilty of tbe felony of arson whereof be stands charged in tbe bill of indictment, but with recommendation tbat be be sentenced to life imprisonment.

Judgment: Confinement in Central Prison at Ealeigb, North Carolina, for tbe term of bis natural life.

Defendant appeals to Supreme Court, assigning errors.

Attorney-General McMullan and Assistant Attorneys-General Rhodes and Moody for the State.

Levinson, Pool ■& Batton for defendant, appellant.

Winborne, J.

Tbe exceptive assignments brought forward and debated by defendant in brief on this appeal bave been examined and found to be without merit.

First: Tbe evidence as to exclamation of tbe witness Lula Stevens at tbe time tbe fire was discovered on tbe outside of tbe bouse where sbe bad just seen defendant is competent as a part of tbe res gestee. Tbe subject bas been fully discussed in many decisions of this Court, among which are these: S. v. Spivey, 151 N. C., 676, 65 S. E., 995; Batchelor v. R. R., 196 N. C., 84, 144 S. E., 542. See also 20 Am. Jur., 551, Evidence, sections 661, 662, and cases cited, and S. v. Lasecki (Ohio), 106 N. E., 660.

Second: Tbe testimony as to statement of defendant regarding bis wife is competent and relevant as tending to .show ill will towards tbe occupants of tbe bouse at tbe time of tbe fire, and a motive for tbe act. S. v. Millican, 158 N. C., 617, 74 S. E., 107; S. v. Thompson, 97 N. C., 496, 1 S. E., 921.

Third: Tbe portions of tbe charge to which exceptions are taken and pressed for error are statements of contentions of tbe State. As to these, an examination of tbe record on this appeal discloses evidence from which inferences might reasonably, logically and fairly be made as related by the court. And the record fails to show that any objection thereto was made by defendant at the time the court stated the contentions. Hence, objection thereto is waived. Mfg. Co. v. R. R., 222 N. C., 330, 23 S. E. (2d), 32; Ward v. R. R., 224 N. C., 696, 32 S. E. (2d), 221.

No error.