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.” Tnis question was answered.
This witness was then asked' if an indictment for perjury-had not been sent to the Grand Jury of Wilkes Superior Court 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 8, Ire. 431. State v. Worthington 64, N. C. R. Bland v. O’Hagan Ib. 471, and Street v. Bryan 65, N. C. R. 619, and Overman v. Cable 13, Ire. 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 black smith’s 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 *329objection cannot be sustained 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 the woods, on said lands, and did 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 &c. 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 would be tautological to have added to this, not on the land of the defendant.
Whether before the Act Rev. Code chap. 35, see. 20 , this indictment would have been sufficient or not, it is unnecessary to decide, as since that act we think the indictment sufficient.
There is no error. This will be certified, that the Court may proceed to judgment.
Per Curiam. Judgment affirmed.