State v. Moore, 3
| Decision Date | 23 September 1964 |
| Docket Number | No. 3,3 |
| Citation | 137 S.E.2d 812,262 N.C. 431 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. Edwin G. MOORE, II. |
T. W. Bruton, Atty. Gen., Charles D. Barham, Jr., Asst. Atty. Gen., for the State.
J. Henry LeRoy, Elizabeth City, G. Eric Rosden, Washington, D. C., Victor S. Bryant, Durham, for defendant, appellant.
The four buildings involved in the indictments were closely connected, and were operated as a single summer resort unit at Nag's Head, North Carolina. Cottages Nos. 1 and 2 were located nearest the ocean the Flagship Hotel farthest away, and the middle cottage between them.
In May, 1960, the defendant and his wife purchased the four units and the furnishings therein from Elizabeth Parkerson who, by agreement, during that summer operated them for the defendant and his wife, both of whom lived in Washington, D. C. The purchase price for the properties was $60,000.00, of which $18,000.00 was paid in cash and mortgages executed for $48,000.00. At the time of the purchase, the buildings and furnishings were insured for $48,000.00. Evidence tended to show that they were worth about $40,000.00 and the land was worth $20,000.00.
At the end of the resort season a dispute arose involving Mrs. Parkerson's operation of the properties. She threatened to foreclose her mortgage for the balance due. Court proceedings involving accounting and foreclosure were instituted. As of April 25, 1961, the defendant had increased the insurance coverage for the buildings and contents from $48,000.00 to $83,000.00. His application for additional coverage of $37,800.00 had been denied. The defendant's indebtedness in Dare County and for his home near Washington amounted to approximately $110,000.00.
At the end of the 1960 resort season the properties involved in these indictments were closed. On weekends the defendant frequently went to Nag's Head and worked in renovating, repairing, and cleaning up the properties. On at least three occasions he had John Henry Bynum accompany him from Washington to assist in the work. However, on the weekend of April 15, Bynum did not accompany him. So far as the evidence discloses, during that weekend he worked alone about the buildings. On April 21, the defendant and Bynum returned to Nag's Head and worked mainly in opening the buildings, airing the furniture, cleaning and painting the first floor of the hotel. Bynum worked on the ground floor and did not go to the second or third floors except just before closing, and then only to take a vacuum cleaner. Before closing, at about 7:30 on the afternoon of the 23rd, the defendant and Bynum fastened all windows and blinds on the first floor of the hotel. However, some of the windows did not have blinds and table cloths, rugs and bed clothing were nailed over these windows and over the glass in the door to prevent outsiders from observing the inside of the building. On prior occasions these extra precautions were not taken.
After completing the closing operations, Bynum went alone to the middle cottage to change clothes for the trip back to Washington. After the change, he stopped by a drugstore for a coca-cola. He went back to the drugstore after one for the defendant. Bynum testified he was away from the defendant during this time for about 10 minutes. The defendant testified that he and Bynum were not separated at any time. Both agreed they left for Washington about 7:30 p. m. on the 23rd.
At 4:30 a. m. on April 25, the Coast Guard discovered that Cottages Nos. 1 and 2 were on fire. Before the fire could be brought under control, both cottages were completely destroyed. While the members of the fire department were still on the scene, a fire broke out on the top floor of the hotel. Members of the fire department forced an entry and extinguished the fire which had caused damage to the top floor and to the roof. A five-gallon can of kerosene with the top missing was near enough to the flames on the third floor that the fluid was hot and smoking. A cap which fitted the can was found on the desk or filing cabinet on the first floor. After putting out the fire, the firemen found four lighted candles in the hotel: one in a closet on the third floor; one in a breezeway between the second and third floors; one in the kitchen on the first floor, and one in the storeroom near the kitchen. The firemen then forced an entry into the middle cottage and found a lighted candle surrounded by mattresses and bedding and other inflammables.
These five candles were about two inches in diameter. They were shown to have been manufactured by Will and Baumer, designed to burn for 72 hours, and intended for use in religious and funeral services. Each of these candles had a cut through the wax all the way to the wick about one inch from the bottom. Inserted in the slit in each case were pieces of paper extending several inches from the sides of the candles. The papers were secured to the candle by scotch tape. Immediately surrounding each candle, in contact with the paper taped to it, were other newspapers and combustible materials. All these candles were lighted at the time of discovery and had burned down to within about one inch of the inserted papers.
On the first floor of the hotel, on or about a desk, table and filing cabinet, the firemen found a scotch tape dispenser still containing about one inch of tape similar to that which secured the paper inserts in the candles. A sharp knife and parts of the Sunday edition of the New York Times of March 5 and a pair of rubber gloves were on or in the desk.
The State Bureau of Investigation and Sheriff's Department conducted experiments with 72-hour candles similar (and similarly rigged) to those discovered in the hotel and in the middle cottage. When the candle burned to the inserted papers they and the surrounding combustible materials immediately caught on fire. A full length 72-hour candle would leave approximately one inch unburned after 33 hours. The inserts were approximately one inch from the bottom in the candles recovered still burning in the hotel and in the middle cottage. Approximately 33 hours had elapsed between the time the defendant left the hotel and the time the fire was discovered.
According to the State's theory, the defendant, heavily involved in debt, had the property grossly overinsured, prepared the candle fire sets during his visit alone on the weekend prior to the fire; that he brought Bynum with him the following weekend to be available as a witness in case he was a suspect, and that while Bynum was changing clothes and procuring the drinks, defendant lighted the candles, intending that the fires from them would occur many hours after he had returned to Washington and destroy all evidence of the manner in which the fire originated.
The defendant's theory was that an enemy, for revenge, actually planted the candles in the manner in which they were discovered for the purpose of pointing the finger of suspicion at the defendant; that the fire did not start from candles.
Admittedly, the State relied on circumstantial evidence. In such cases the rules for testing the quantum of proof necessary (1) to carry a case to the jury, and (2) thereafter to warrant the jury in returning a verdict of guilty, are set forth in State v. Thompson, 256 N.C. 593, 124 S.E.2d 728; State v. Horner, 248 N.C. 342, 103 S.E.2d 694; State v. Stephens, 244 N.C. 380, 93 S.E.2d 431; State v. Simmons, 240 N.C....
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