State v. . Young
122 S.E. 667
N.C.
1924
Check Treatment
Clark, C. J.

Tbe defendant was convicted of burning a dwelling-bouse in tbe possession of W. H. Wilson, bis tenant. Tbe bouse was situated seven or eight miles south of Salisbury on tbe jmblic road. It was burned Saturday nigbt, 24 March, 1923, between 8 and 9 o’clock. Tbe evidence showed that tbe defendant and bis said tenant were on very unfriendly terms, and that tbe defendant bad made threats against tenant and bad brought summary proceedings in ejectment before a justice of tbe peace shortly before tbe burning, in wbicb tbe defendant bad lost. There was evidence that tbe defendant knew that neither Wilson nor any niember of bis family were in tbe bouse; that they usually slept there in tbe daytime and worked at nigbt in Spencer. Tbe bouse was insured.

Tbe evidence connecting tbe defendant with tbe crime was circumstantial. It was- in evidence that a car was seen parked at about tbe time of tbe fire on tbe road near tbe building by one Holshauser, who testified that in turning tbe bend of tbe road tbe lights of bis automobile flashed upon this parked machine and that be saw tbe number— No. 129,295. He was corroborated by Sam Cooper who testified that Holshauser told him tbe incident three days later, and that this was tbe *699 number on the car. There were other witnesses who testified that this was the number on the car belonging to the defendant. The State corroborated Holshauser by witnesses who described, as he did, the track made by this automobile, that one wheel made the impression of a “V” -and that the other wheels made normal tracks. He and others testified that they went the next day to where it had been parked and found it made such tracks. The testimony of the State was that the tracks made by the defendant’s car made exactly the kind of track Holshauser testified was made by this parked vehicle.

There was evidence that an experiment was made by Holshauser in the car in which he was riding by which he flashed the light at the same turn in the road and that it was sufficient to read the number of the ear standing where this car had stood on the night in question. There was also evidence that there was an oil can in a bush near the burned house which was identified as the property of the defendant.

There was also evidence that the tracks leading up the lane to the house and in the direction of the automobile corresponded with the measurement of the tracks made by the defendant.

The defendant excepted to the evidence of the measurements and comparison of the tracks of the automobile, and of the experiments as to flashing a light on an automobile parked where Holshauser said this was parked, and the ability to read the number of the machine.

In S. v. Morris, 84 N. C., 756, the Court said: “We know of no principle of law or rule of evidence in which the testimony offered by the State in regard to the examination of the tracks and boots of the prisoner should have been excluded because made in the absence of the prisoner or without notice to him to be present. The counsel who argued the case here for the prisoner cited us to no authority in support of the position, and it is difficult to conceive that any such could be found. . . . The prisoner’s counsel did not strenuously urge this point upon the court, but laid the stress of his argument upon the incompetency of the evidence in relation to the tracks, and their correspondence with the prisoner’s boots, because it did not appear that the witnesses who testified to those matters were experts, or acquainted with the tracks of the prisoner. . . . Rut it has been so frequently and so recently decided by this Court, and so clearly taught in all the elementary authors, that it is not necessary that a witness should be an expert to entitle him to testify as to the identification of tracks, and their correspondence with the shoes that may be worn by parties on trial, as to leave it no longer an open question.”

The competence of the evidence of the measurements of the' tracks was held competent also in S. v. Freeman, 146 N. C., 618; S. v. Reitz, 83 N. C., 634; S. v. Graham, 74 N. C., 646; S. v. Daniels, 134 N. C., *700 641; S. v. Martin, 173 N. C., 808; S. v. Adams, 138 N. C., 691-696; S. v. Griffith, 185 N. C., 759.

In S. v. Freeman, 146 N. C., 615, tbe witness followed tbe cart tracks to witbin 100 yards of George Freeman’s' bouse, and tbe same men’s tracks tbat bad come from tbe store by tbe side of cart track, and tben followed tbe mule track a quarter of a mile farther, to Frank Freeman’s bouse; followed tbe man’s track 100 yards on from cart track to George Freeman’s bouse. Tbe same ruling would apply to tbe tracking of an automobile, especially wben tbe track bad a peculiarity, as in tbis case.

It appears from tbe testimony in tbis case tbat tbe defendant’s car made three tracks alike, but one rear wheel made a “V” shape in tbe ground, and wben defendant’s automobile was seen in Salisbury it bad on it three tires of the same kind and the same rear tire made a “V” in tbe ground, just such marks as were made by tbe automobile parked on. tbe side of tbe road tbe night tbe bouse was burned.

Experiments to corroborate tbe testimony of tbe witness Holshauser were competent, 22 C. J., 755, 759, and numerous authorities there cited from many States. Tbe same character of evidence was sustained in Cox v. R. R., 126 N. C., 105; Arrowood v. R. R., ibid., 632. In tbe latter case exactly similar evidence of experiments with headlights was held competent.

Tbe charge was elaborate and tbe defendant takes no exception to any part of it. Tbe defendant bad a fair trial, and tbe jury convicted him upon tbe evidence which, we think, justified tbe verdict. It was a question of' fact for tbe jury, and they have determined tbe fact adversely to tbe defendant. We find

No error.