State v. Gailor

• Decision Date: 30 June 1874
• Court: North Carolina Supreme Court
• Parties: STATE v. HAYWOOD GAILOR.

17 Am.Rep. 3

71 N.C. 88

STATE

v.HAYWOOD GAILOR.

Supreme Court of North Carolina.

June Term, 1874.

Where the evidence against the accused is wholly of a circumstantial nature, it is competent to show malice by his own acts and declarations, as a link in the chain, fixing him as the guilty party.

In an indictment for arson, the ownership of the property is well laid in the widow of the deceased owner, who had occupied and used the same since her husband's death, although there were living heirs, and no dower had been allotted to her.

( State v. Arnold, 13 Ired. 184; State v. Mason, Ibid 341; Busb. 197, cited and approved.)

INDICTMENT for Arson, tried before His Honor, Judge Buxton, at the Fall Term, 1873, of SAMPSON Superior Court.

The prisoner was charged in an indictment of six counts with burning an out-house of the prosecutrix, Susan A. Andres, who testified:

That she was the widow of Elisha J. Andres, who died in July, 1873, leaving her and four infant children. Her husband also left a daughter, by a former marriage, Hannah, the wife of Robert Melvin, all of the children living. After the death of her husband she, with her four infant children continued to occupy the premises left by her husband--the married daughter living elsewhere. The house which was burned 11th October, 1873, was situated on the premises, about one hundred and fifty yards from the dwelling, with a fence between; it was a log house, weatherboarded and covered with shingles, with brick pillars and chimney. It had once been used as a dwelling, and had been occupied by negroes, but when burned it was in her possession and occupation, and used for storing fodder, being half full of fodder at the time it was burned.

The witness further stated that the house was set on fire in the fore part of the night, as near as she could say, before 12 o'clock. Joe Andres was at her house the night on a visit and discovered the fire first. Witness had been lying down, but her baby being sick, she got up and saw the fodder on fire and the flames coming out of the door.

Witness had known prisoner for about a year; he did not live in the neighborhood. The prisoner wanted to rent her turpentine and farming lands, but she would not let him; he then proposed to come on her place and superintend for her; this she also declined. He accused the witness of breaking up a match between him and her sister. On one Sunday night, several weeks before the fire, the prisoner came to her house in a drinking condition and abused her. He said he believed that the witness broke up his match, and threw up to her about a young man's riding with her sister. She told him that her sister had ridden with a gentleman. He said “it was a d_____d lie; that he was as d_____d a rascal as there was in Sampson county.” Witness then gave him orders to stay away.

The house was burned on Saturday night. On the Friday night before, the prisoner came to her house and said Dr. Kerr asked him to come by and tell her that he was going over South river and would call at her house in passing. (This, Dr. Kerr, on his examination, denied.) The prisoner, on this occasion, came to her house in a sulkey, and staid all night. Witness permitted him to do this because she was afraid of him. He left on Saturday morning before she got up. He was driving a mule in the sulkey. On Sunday morning she went out to look at the burnt house, and noticed some tracks of a man within fourteen steps of the house, the grass having been for that distance burned off. The tracks came from up the road, through the field from the direction of South river bridge. From the river to the witness' house is a half mile, the road being so shut up that vehicles cannot pass. Witness followed the track towards and near the bridge; traced them through and outside of the field to a place near where tracks of a sulkey and mule were discovered. The sulkey tracks came from over the bridge and returned in that direction. The tracks of the man went to her lot gate, to the stable, and then back to the gate and down the road. Her own horse had been turned out of the stable. The tracks, in her opinion, were the tracks of the prisoner. She had noticed his tracks a good deal. He wore boots with a star on the heels; the heels of the boots were capped with brass, in the middle of which a star was cut; he wore such boots on Friday; witness noticed the stars in the tracks; and the size of the tracks corresponded with his. Prisoner had a peculiar way of walking, causing a pressure on the side of the foot; the tracks showed this; they looked pressed.

This witness further stated that one night, not quite three weeks before this outhouse was burned, she had another house burned across the Bladen line, some three miles distant. On the morning she heard of it she remarked to the prisoner, who was at her house, that she did not think she had enemies round there who would do that. He replied, “You ought to know who your enemies were; they are Bob Melvin and Calhoun Melvin.” He then asked how much turpentine she had. She told him she did not know, as it had not been dipped out. He said, “my best advice to you is, to have it dipped out and bunched; he would not be at all surprised if, in three weeks, there would not be a building on that hill, from the threats of Bob Melvin, made between the forks of the road and Harrell's store.”

The State then proposed to show circumstances under which the prisoner came to and entered the house of the prosecutrix, Mrs. Andres, on the occasion of the conversation just stated. After objection on the part of prisoner's counsel, by leave of the...