State v. Morgan

• Citation: 48 S.E. 670,136 N.C. 628
• Parties: STATE v. MORGAN et al.
• Decision Date: 25 October 1904
• Court: North Carolina Supreme Court

48 S.E. 670

136 N.C. 628

STATE v. MORGAN et al.

Supreme Court of North Carolina

October 25, 1904

Appeal from Superior Court, Union County; Peebles, Judge.

Elizabeth Morgan and another were convicted of crime, and they appeal. Reversed.

Giving an erroneous rule of law calculated to mislead is not cured by giving the correct rule in other portions of the charge.

Redwine & Stack, for appellants.

The Attorney General and Adams, Jerome & Armfield, for the State.

WALKER J.

The defendants were indicted for burning a barn or granary, the property of Henry Dry. There were two counts in the bill. In the first it was alleged that Samuel N. Ford willfully wantonly, and feloniously set fire to the barn; and in the second that Elizabeth Morgan and her husband, John E. Morgan unlawfully, willfully, wantonly, and feloniously incited and procured him to do it. The indictment was drawn under section 985 (6) of the Code [as amended by Laws 1885, p. 115, c. 66], which requires the act to be done "willfully and wantonly," and makes it a felony. The state introduced evidence which tended to show that Ford had set fire to the barn, and that the other persons named in the bill procured him to do so, and there was evidence for the defendants tending to show the contrary. John E. Morgan died before the trial.

Numerous exceptions to the admission and rejection of testimony were noted by the defendants, but, as there is an exception taken to the charge of the court to the jury, which we must sustain, it is deemed unnecessary to consider the other questions raised, as they may not be again presented.

The state alleged, and it was one of its principal contentions that John E. Morgan and his wife and the other defendant Samuel N. Ford, had formed a conspiracy to burn the barn, because John E. Morgan was mad with one Henry Dry, and, as one of Morgan's tenants had left him and gone to live with Dry, he wanted to have his revenge. This was assigned by the state as the motive for the burning, and in referring to the question of motive the court charged the jury as follows: "While it is permissible to show motive as a circumstance to be considered by the jury upon the question of guilt, it is not necessary, as contended by counsel for the defendants, that the state should show a motive. All the state has to do is to satisfy the jury beyond a reasonable doubt that the defendants did the acts charged in the bill of indictment." To the last part of this instruction, the defendants in apt time excepted. It must be conceded that it is not always necessary to show either a motive or an intent, for in some offenses the intent to do the forbidden act is the criminal intent, and the act committed with that intent constitutes the crime. If the person has done the act which in itself is a violation of the law, he will not be heard to say that he did not have the intent. State v. King, 86 N.C. 603; State v. Voight, 90 N.C. 741; State v. Smith, 93 N.C. 516; State v. McBrayer, 98 N.C. 619, 2 S.E. 755; State v. McLean, 121 N.C. 589, 28 S.E. 140, 42 L. R. A. 721. But this principle does not apply when the act is itself equivocal, and becomes criminal only by reason of the intent. State v. King, and cases supra. In the latter case, if the act may be innocent, or not according to the intent with which it is done, or if its criminality depends upon the intent, it is incumbent on the state to show the intent, or to show the facts and circumstances from which the intent may be inferred by the jury; and it is necessary that the jury should find the intent as a fact before the defendant charged with the commission of the act can be adjudged guilty of a crime. State v. McDonald, 133 N.C. 680, 45 S.E. 582. The principle just stated, which is fully sustained by the authorities, has been applied by this court to cases where the act is forbidden and denounced as criminal if ""willfully" or "wantonly" done. In State v. Whitener, 93 N.C. 590, the defendant was indicted for "willfully and unlawfully injuring and damaging a house" by removing a window sash, under section 1761 of the Code. The court charged the jury, substantially as did the judge in our case, that, if the defendant committed the act--that is, removed the sash--he was guilty, and they should so find. This was held to be error, the court, through Ashe, J., saying: "The facts as found and admitted clearly bring the act of the defendant within the words of the statute, but they do not bring him within its meaning and spirit. The indictment, following the statute, charges that the act of removing the sash was unlawful and willful. Conceding it to have been unlawful, it does not follow that it was willful. The word 'willful,' used in a statute creating a criminal offense, means something more than an intention to do a thing. It implies the doing the act purposely and deliberately, indicating a purpose to do it, without authority, careless whether he has the right or not, in violation of law; and it is this which makes the criminal intent, without...