State v. Millican

• Decision Date: 20 March 1912
• Citation: 74 S.E. 107,158 N.C. 617
• Parties: STATE v. MILLICAN et al.
• Court: North Carolina Supreme Court

74 S.E. 107

158 N.C. 617

STATE v. MILLICAN et al.

Supreme Court of North Carolina

March 20, 1912

Appeal from Superior Court, Lenoir County; Ferguson, Judge.

Lonnie Millican and others were convicted of statutory arson, and they appeal. Affirmed.

Error if any, in certain instructions, held not reversible.

The defendants were indicted at May term, 1911, of the superior court of Lenoir county, under section 3338 of the Revisal for burning a warehouse in La Grange. They were tried on the indictment at October term of said court, and upon failure of the jury to agree a juror was withdrawn and a new trial ordered. They were tried a second time at January term, 1912 of said court, and convicted. The judge presiding sentenced each of the defendants to a term of 30 years at hard labor in the state's prison, and they appealed.

Y. T. 0rmond, G. V. Cowper, and F. I. Sutton, for appellants.

Attorney General Bickett and T. H. Calvert, for the State.

ALLEN J.

If we were permitted to examine the evidence for the purpose of determining the guilt or innocence of the defendants, we would have grave doubts as to the propriety of sustaining the verdict of the jury. The state had to rely upon a witness, who claimed to be an accomplice, whose evidence is unsatisfactory and has very little corroboration. This witness gives the following account of the burning: "Sunday, before the fire, I came downtown, and when I got there, there was Lonnie Millican, Jim Britt, and Nick Joyner on the platform talking--the depot platform. I walked up there and asked them to let me get in what they were talking about, and Lonnie said, 'All right, if you can keep a secret.' He said the white folks didn't like them and he was going to get even. I asked how he was going to get even, and he said he was going to burn the town. I said I would watch. I cannot tell what time it was. I don't know exactly. Nobody but these three boys when I got there. When I said I would watch, Lonnie and Jim went on, and then Nick and I went on. Just went down to Wooten's alley; Lonnie and Jim first, and then me and Nick. Lonnie told me where to stand when we got there. Nick goes on between Mr. Barwick's and the bank. I stood at the alley towards Front street. Nick was between Barwick's and the hotel there. Lonnie and Jim went back behind Mr. McDonald's warehouse as far as I could see them. We went in the alleyway. They told me they were going to burn the town; that the white folks didn't like them. I told them I would watch. After they went, I saw Jim raking up trash. I could not see exactly on account of Lonnie's overcoat. I could not half see for his overcoat. Don't know where he put the trash. They came back and then went behind Mr. Sim Wooten's stores. I went out on Front street then. I could not tell how close they were to warehouse. I don't know how close --pretty close to it. I heard people holler fire when I went on Front street. Nick and I went about the same time and heard them then. When I got back, Mr. McDonald's building was burning and Mr. Barwick's had caught. Had gone about a half of a block before alarm of fire. No, sir; it wasn't dark when I went back behind the warehouse and was watching. You could see anybody behind there." In addition to his confession that he was an accomplice, he was further discredited by his admission that he was indicted, and employed a lawyer to defend him, telling him that he was not connected with the fire, and the fact that he had been taken out of prison several times and examined by officers of the law, and was finally liberated without a trial. If his statement is true, the defendants, without previous conference with him, told him at once, upon his approaching them, of their purpose to burn the town, and he, without motive, agreed to watch, and all of them went immediately before it was dark and set fire to a warehouse, which was overlooked by a hotel and in a populous community. In addition to this, at least one of the defendants offered evidence of an alibi, which, if believed, was complete. We have given a brief statement of the evidence in order that the bearing of the exceptions relied on by the defendants may be understood, as our duty is limited to the consideration of the alleged errors in law, and, in cases like this, we have no power to review the verdict of the jury.

The first exception is to the refusal of his honor to order a severance. As was said in State v. Oxendine, 107 N.C. 783, 12 S.E. 573, and in State v. Carrawan, 142 N.C. 576, 54 S.E. 1002: "The refusal of the court to grant a severance is not reviewable, except in case of gross abuse, and no such abuse appears in this case." And therefore the exception cannot be sustained.

His honor excluded evidence to prove that, after the imprisonment of the defendants, there were other fires at La Grange, and this is the basis of the second, third, fifth, sixth, and fourteenth exceptions. The fact that there were other fires at La Grange, standing alone, could have no probative force and, if there were such fires, there was no effort to prove that they were not accidental, and were incendiary. If, however, such evidence had been offered, it would have been incompetent, as it would introduce other and different issues and would have no tendency to prove the guilt or innocence of the defendants. If the defendants could offer evidence that, after their imprisonment, there were other fires at La Grange that were incendiary, the state must be permitted to contradict, and if the defendants establish their contention, it would prove nothing, except that there were others than the defendants who would commit crime, which would not exculpate them. The case of State v. Smarr, 121 N.C. 669, 28 S.E. 549, seems to be in point against the defendants, in which it was held that on the trial of one for burglary it is not competent for him to show that other burglaries were committed in the same neighborhood about the same time, and it has been held uniformly in this state that evidence much stronger than that offered by the defendants of a kindred nature, which would prove that another committed the crime...