State v. . ClarkState v. . Clark
- Reporters:
- , ,
- Before:
- Walker
As thе prisoner moved to nonsuit the State, under the statute, upon the ground that there was no evidence of his guilt, it will be necessary to set forth a part of the testimony as given by the State‘s witnesses, which is as follows:
Nancy Buckner testified: “I am 60 years of age; have lived in Tarboro most of my life; am a widow, my husband having beеn dead many years. On 21 August, 1915, I owned a lot and dwelling-house thereon, situated on corner of Water and Trade streets of the town of Tarboro; it was a one-story three-room frame house, with ell and kitchen behind, and back and front porch with fence around portion on Water Street; and porch of said house was right on Water Street, the sill of which rested on ground; the lots along here dropped to the lowgrounds of the river and the back part of the house was on posts or pillars high enough for me to walk under the same; my house fronted on Water Street and was on the south side of the same; I kept firewood beneath the back part of the same. I rented two front rooms to Florence Peyton and her grandmother, Lidia Olus, and they with Florence‘s child slept there at nights, but worked out during the day. There had been no fire in the house that day except in the kitchen. I knew prisoner, Wesley Clark; he and his wife were living at that time on Albemarle Avenue of the town, above the cotton yard, which is next street west from Trade. East of my house on side of Water Street was an open space about 80 feet to next house. Florence Peyton slept in room next to cotton yard. On Saturday morning, 21 August, 1915, I saw Wesley Clark in Florence‘s
Bert Shaw testified: “I am a single woman and do washing; came home early on morning of 21 August, 1915; I think about 3 a.m. I saw Wesley Clark on the railroad in front of my house; the railroad ran along Albemarle Avenue, a street of Tarboro; electric light there and saw him distinctly. He went and sat down on steps of William Ann Avis. Came home at 3 a.m. that morning from picnic. I was in buggy with two men; did not know them; I was tired, undressed and went to bed and to sleep. My mother woke me at the sound of the alarm of fire. Don‘t know exactly what hour; did not get up or go to fire. William Ann Avis and the prisoner and his wife lived in the same house — double
William Ann Avis testified: “On 21 August, 1915, I was living in a four-room house on Albemarle Avenue. I occupied two rоoms of the house and Wesley Clark and his wife occupied the other two. There was a lathed and plastered partition between us. I could hear them talk from my rooms and they could hear me. I remember I was sick on the night that Nancy Buckner‘s house was burned and was up most of the night. About 3 a.m. I heard Wesley Clark leave his house and about five minutes thereafter the fire alarm bell was rung. I called Wesley‘s wife, and when she came out she was fastening her dress. We went to the fire to Nancy Buckner‘s house; Wesley was not there, I did not see him and have not seen him since. I have one bastard child now, grown and married. I havе no ill or bad feeling against Wesley Clark; the cotton yard was south of my house; cotton yard was open and ground path ran across same to Water Street; I heard the fire alarm bell five minutes after Wesley went out of room. I have been sentenced (742) to the county home for sixty days for cutting my husband, and sеrved my time.”
Florence Peyton testified: “I am 21 years old; work at washing and ironing; I was born in New York; lived a while at Chapel Hill; have been here some time. I have had rooms with my grandmother, Lidia Olus, for two years or more at Nancy Buckner‘s house. Worked out and slept there. I had no fire in or about my room 21 August; there may hаve been a can of kerosene in my room. About 9 a.m. that day I was asleep in my room and Wesley Clark woke me up. I asked him what he was doing in my room and I in my night clothes; he said, `Can‘t I talk to you? I have treated you too much like a lady to talk about me to my back to that man at the spring.’ I told him I had not talked аbout him to any man anywhere. He quarreled some. He pulled out his knife and drew it across my throat. I told him to cut my throat, and he said he did have a great mind to do it. He then went out of my room, and Nancy Buckner asked him what he was doing in there. He replied that it was none of her business; that he was tired of fooling with Tarborо negroes, and that he was going to belch and everybody in Tarboro would know it. He said that he would go to the electric chair for Nancy. Nancy told him to get out and he told her she could not put him out. She said she would send uptown and have him put out. He said he would cut any one sent in cracks. He said he is all right. `I hаve treated you too nice and bad luck will follow your tracks.’ He told me, `You treat me wrong,’ and that I would soon fall in hell. Wesley left after that, and I have not seen him since until the trial. Wesley was never
Lidia Olus testified: “I am the grandmother of Florence Peyton аnd at the time of the fire had rooms with her at Nancy Buckner‘s; was cooking for Mr. Savage. About 10 o‘clock Saturday morning, 21 August, 1915, Wesley Clark came by where I was working and said: `Old Buck is mad with me; told me to get out of her house.’ He said she was a mean negro. I told him not to pay any attention to (743) that. He did not seem mad. I had lived at Nancy Buckner‘s two years or more, and Wesley Clark frequently visited the house. I worked out as a cook and stayed at Nancy‘s at night.”
Paul McCabe testified: “I am a member of Tarboro Fire Company and make reports to Raleigh. I was at fire at Nancy Buckner‘s Sunday morning, 22 August, 1915. I was back there at 10 a.m. with Bob Cоsby and L. E. Fountain. I found frying-pan on sill next to Trade Street and also some burnt cotton under the house. The pan was about 10 inches in diameter and 2 inches deep and would hold two quarts. I smelled oil on the same and saw partly burnt bunches of cotton; the cotton appeared to be in balls or as if same had been compressed slightly. There was a train that passed Tarboro for Norfolk, Virginia, at 4 a.m., at this time. The cotton yard was about a half block away on north side of Water Street, northwest from Nancy‘s house. Behind Nancy‘s house and along Water Street the land sloped sharply to river lowgrounds, and they аre overflowed at high water. Wind might blow cotton from cotton yard to back lots. Fire would burn up kerosene oil, but what I meant to say was that I smelt the odor of burnt oil.” (There was other testimony to the effect that cotton could be blown to place where fire started.)
Bob Cosby testified: “I was present on Sunday a.m. after fire at Nancy Buckner‘s house with Paul McCabe and L. E. Fountain. Saw the frying-pan as described by Mr. McCabe and saw where it was. It was where McCabe said it was. It had the appearance of being a new one and had never been used before; smelt of burnt oil. There was a train that passed Tarboro going to Norfolk via Hobgood about 4 o‘clock in the morning.”
P. F. Pulley testified: “I am chief of police of Tarboro, and at request of Sheriff Hyatt I went last March to Norfolk for Wesley Clark. I knew him and I found him in jail. I spoke to him. At first he did not speak, but later did. The only thing he said to me coming from Norfolk to Tarboro, on the railroad cars, was that as the train was near or approaching Hobgood, Wesley looked out of the window and remarked that `Right along here is where I was at sunrise on the Sunday morning that I am charged with burning Nancy Buckner‘s house.‘”
There was testimony that the prisoner had worked for Harry Anthony in Halifax County and thаt he walked to Anthony‘s home from Tarboro the morning on which the fire occurred, arriving there about 10 o‘clock a.m. and a day before he was expected. He worked for Anthony for several months and was engaged in ditching. He gave as his reason for coming a day ahead that “he wanted to be оn the job (744) in time“; that he had money and could have come by train, but he preferred to walk. He arrived on Sunday.
The prisoner moved for a nonsuit, the motion was denied, and he excepted. There were other rulings to which he took exceptions, but they will be noticed hereafter. He was convictеd by the jury and appealed from the sentence of the court. It will be necessary to consider only one question, as the others are, in our opinion, without substantial merit. The prisoner, at the proper time, moved for a judgment of nonsuit upon the evidence, which the court refused to grant, and prоperly so, as there were facts and circumstances which tended to show his guilt. The crime of arson is one usually committed with great secrecy and not infrequently under the cover and concealment of night. The State, therefore, in most of the cases is compelled to rely on circumstantial еvidence for a conviction.
The undisputed facts in this case tend very strongly, though not unerringly, to implicate the prisoner as the guilty party. He had made threats against the owner of the house, Nancy Buckner, the day before the burning, which clearly implied that he would take the earliest opportunity to avenge what she had said and done to him. It is true that the threats were general in their character and did not indicate that his purpose was to burn her house, but they were at least sufficient to show that he had a motive for the act. That the burning was the act of an incendiary appears from the manner in whiсh it was done. The cotton was no doubt taken from the adjoining yard, where cotton was to be
The facts in this case are not substantially weaker than those in S. v. King, supra, and S. v. Goings, 101 N.C. 706, where convictions were sustained. Here we have the presence of the prisoner at a place very near the house that was burned, at an unusual hour; the occurrence of the fire almost immediately after he was seen; his sudden departure from his home when the alarm of fire was given; his absence for many months, and, finally, the motive to commit the incendiary act.
We are mindful of the rule that evidence which merely shows it possible for the fact in issue to be as alleged, or which raises оnly a conjecture that it is so, is an insufficient foundation, for a verdict of guilty, and should not be left to the jury (Byrd v. Express Co., 139 N.C. 276; S. v. Vinson, 63 N.C. 335); but this evidence is of stronger probative force than conjecture and furnishes a much more substantial basis for a conviction. It was for the jury to pass upon its weight, and they could reasonably infer the prisоner‘s guilt therefrom. S. v. Lytle, 117 N.C. 803; S. v. Carmon, 145 N.C. 481; S. v. Adams, 138 N.C. 688; S. v. Walker, 149 N.C. 527; S. v. McGlammery, post, 748. These cases, and those already cited, fully sustain the ruling of the court. The evidence in this case is really stronger against the prisoner than it was in some of the cases we rely on, where convictions were sustained.
The prisoner‘s explanation of his sudden departure from Tarboro for Halifax County at 3 o‘clock in the morning was not a very creditable one. He could have left much later in the day and reached the home of
No error.
Cited: S. v. Martin, 182 N.C. 849; S. v. Moses, 207 N.C. 141; S. v. Stamey, 207 N.C. 855.
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