23 S.E. 476 | N.C. | 1895
The exceptions not appearing very plainly from the record, it was agreed by the Attorney-General and Mr. Adams, who represented the defendant, to submit the case on three exceptions: 1. That there was no evidence that the offense charged (burning a barn) was committed in Buncombe County. 2. As to the admission of evidence that defendant had threatened to burn the barn. 3. The court erroneously allowed the evidence of Dawkins as to seeing defendant the night of the fire.
The first exception cannot be sustained. The indictment charged the offense to have been committed in Buncombe County. Defendant pleaded not guilty and went to trial, and there was no evidence *550
(801) introduced to show that the offense was committed in Buncombe County or any other county. It was in evidence that it was within eleven miles of Asheville. But we will leave this evidence out of the case in considering this exception. There was no such point made on the trial, no request that the court should rule upon this question, no instruction asked as to this point. But the question is attempted to be raised by the exception as to the charge of the court that, there being no evidence on this point, the court should have directed the jury to return a verdict of not guilty. For this position the counsel for defendant cited S. v. Revels,
This statute reversed the rule which seems to have obtained on the trials of criminal cases before its enactment. It was intended to do so, and we must hold that it did do so. It provides that it should be presumed that the offense was committed within the county in which the indictment charges it to have been committed, and makes it a matter of defense, if this is denied by defendants, to be taken advantage of by plea in abatement, if it is alleged to have occurred in another county of this State, as held in S. v. Outerbridge,
The second exception cannot be sustained. One Van Allen, among other things, testified that in a conversation with defendant a short time before the burning, in which defendant was complaining of the prosecutor Merrill claiming too much rent, the witness asked defendant what he was going to do about it, when defendant replied: "I'll burn it, I'll burn it, I'll burn it." This evidence was objected to by defendant, allowed by the court, and defendant excepted, and cites S. v. *551 Norton in support of his exception. But this case is distinguishable from Norton's case. That was an indictment for assault and battery. There was no dispute as to the parties engaged in the difficulty, and it was held to be incompetent, as it could not tend to explain the fight. But in that case it is said that it is competent in cases where it became material to show intent. This case is a case of circumstantial evidence. The fact that the barn was burned was not denied. But who did it was the question. The State alleged that it was the defendant, and offered this evidence as one fact, or link in the chain, connecting the defendant with the burning; that he had the motive, which is always considered a leading fact in circumstantial evidence. And in this view threats were allowed to be proved in S. v.Rhodes,
The third exception cannot be sustained. John Dawkins, (803) among other things, testified: "I recollect the night when the barn was burnt. I met a man whom I took to be Lytle; I was in seven steps of him, the man whom I took to be Lytle, in the road near my house. He was a low, chunky man. It was too dark to see whether he was white or black. He had his back to me, had on a dark sack coat. I have known Lytle ten years, have seen him often. Had I spoken to him I would have called him Lytle. This was almost 7:30, on the Howard Gap Road. This was the night the barn was burnt." This evidence was objected to, allowed, and defendant excepted, and S. v. Thorp,
Affirmed.
Cited: S. v. Costner,
