State v. Brodie

• Decision Date: 25 November 1925
• Docket Number: 378.
• Parties: STATE v. BRODIE.
• Court: North Carolina Supreme Court

130 S.E. 205

190 N.C. 554

STATE v. BRODIE.

No. 378.

Supreme Court of North Carolina

November 25, 1925

Appeal from Superior Court, Stokes County; McElroy, Judge.

C. B Brodie was convicted of having set fire to, and having burned, certain buildings, and he appeals. No error.

The indictment charged the defendant with having set fire to, and having burned, the storehouse and other buildings of J. B Woodruff; the storehouse having been occupied and used at the time by the defendant in carrying on a dry goods business and the other building having been occupied and used by one W. H. Voight as a moving picture show. C. S. § 4242.

Woodruff was the owner of both these buildings, which were situated in Walnut Cove. He had conducted a mercantile business in the storehouse for some time before May 3, 1923, when he sold his stock of goods and rented the building to the defendant, who immediately went into possession. The defendant continued the business there until the fire occurred. In September, 1923 he insured his stock of goods for $6,000, and at 1 o'clock in the night, January 24, 1924, a fire broke out and destroyed the entire stock of goods and both buildings. At the trial, a large number of witnesses were examined on each side, and the jury found the defendant guilty as charged in the indictment. Judgment was pronounced, and the defendant appealed. The material exceptions are noted in the opinion.

Corroborative evidence, admitted to uphold veracity of witness, may include previous statements.

N. O. Petree, of Danbury, George Jarvis, of Walnut Cove, and Swink, Clement & Hutchins, of Winston-Salem, for appellant.

D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS J.

The defendant first assigns as error the admission of Woodruff's testimony as to what the stock of goods was worth on January 1, 1924. The ground of the exception is the alleged expression of an opinion not formed by the witness upon a personal examination or observation of the goods. It is a familiar principle that one who is called to testify is usually restricted to facts within his knowledge; but if, by reason of opportunities for observation, he is in a position to judge of the facts more accurately than those who have not had such opportunities, his testimony will not be excluded on the ground that it is a mere expression of opinion. McKelvey on Evidence, 172, 231; Greensboro v. Garrison, 190 N.C. 577, 130 S.E. 203; Hill v. Railroad, 186 N.C. 475, 119 S.E. 884; Shepherd v. Sellers, 182 N.C. 701, 109 S.E. 847; Marshall v. Telephone Co., 181 N.C. 292, 106 S.E. 818.

In assuming that Woodruff's estimate of value was not the result of his personal observation, the defendant is in error. Having made his last inventory about four months before the sale, Woodruff testified that he had gone to the store several times since the sale to see whether the defendant was keeping up the stock of goods, and that he had examined it only a few hours before the fire broke out. His "judgment" as to the value of the goods was formed after a personal inspection of the stock on hand. The first exception, then, is without merit.

Voight's testimony that he had carried no insurance (sixth exception) was competent as tending to explain the defendant's request that Voight should take out a policy before the first of the year, and that he had given Voight the last warning; and what Mrs. Voight said (seventh exception) was evidently admitted in corroboration of her husband. In State v. Bethea, 186 N.C. 22, 118 S.E. 800, it is said that, after the credibility of a witness has been impugned by cross-examination, it is permissible to corroborate and support his credibility by evidence tending to restore confidence in his veracity and in the truth of his testimony. Voight had been subjected to cross-examination, and his wife's testimony referred to circumstances concerning which he had previously testified. Such corroborating evidence may include previous statements, whether near or remote, and whether made pending the controversy or ante litem motam. These exceptions must therefore be overruled. Dellinger v. Building Co., 187 N.C. 845, 123 S.E. 78; State v. Krout, 183 N.C. 804, 112 S.E. 23; State v. Exum, 138 N.C. 600, 50 S.E. 283; State v. George, 30 N.C. 324, 49 Am. Dec. 392.

Woodruff sold his stock of goods to the defendant on May 3, 1923. He had taken an inventory on the 1st day of the preceding January; and the defendant made a similar inventory on May 14, 1923. The state contended that by sales and by the removal of goods from the storehouse the defendant had reduced the value of his stock very much below the amount of his insurance; and it offered Woodruff's inventory, which was admitted, not as substantive, but as corroborative evidence. To the admission of this evidence the defendant entered exceptions 8, 9, 10, 11. It will be noted that the defendant exhibited his inventory to the insurance agent at the time the policy was issued, that a comparision of the two inventories, item by item, tended to show that the defendant had padded his, and that the value of the destroyed goods was far below the face of the policy. Granted this theory, we do not perceive any valid reason for the exclusion of this evidence or that which is the subject of the seventh, twelfth, thirteenth, fourteenth, and fifteenth exceptions.

J. M. Stultz, a witness for the defense, testified that he knew the defendant and his wife, and that her character was good. On cross-examination he was asked whether "the defendant had the reputation of having had several fires while living in Virginia," and answered, "I think he had some fires, at least I heard of it; I did not know it to be a fact." Again:

"Q. I ask you if the defendant had the general reputation of having had three fires in 1910 and 1911 and collecting insurance on them? A. I do not know. I heard about the fires but do not know about the insurance."

To the admission of this testimony, the defendant noted exceptions 20 and 21.

Inquiry into the law concerning such impeaching evidence, and the distinctions drawn in several of our decisions in reference thereto, is not necessary to a disposition of these exceptions. With respect to the question, the following cases may be consulted: Barton v. Morphes, 13 N.C. 520; State v. Johnston, 82 N.C. 589; State v Garland, ...