State v. Patton, 148.

• Citation: 19 S.E.2d 142,221 N.C. 117
• Decision Date: 18 March 1942
• Docket Number: No. 148.,148.
• Court: United States State Supreme Court of North Carolina
• Parties: STATE. v. PATTON.

19 S.E.2d 142
221 N.C. 117

STATE.
v.
PATTON.

No. 148.

Supreme Court of North Carolina.

March 18, 1942.

[19 S.E.2d 143]

Appeal from Superior Court, McDowell County; F. Donald Phillips, Judge.

Arthur Patton, Jr., was convicted of wilfully or negligently setting woods on fire, in violation of statute, and he appeals.

Remanded.

The defendant was charged with wilfully or negligently setting woods on fire, in violation of C.S. § 4310, as amended by Chap. 258, Public Laws 1941.

The jury returned verdict of guilty. The defendant moved to set aside verdict and for new trial. The motion was denied and defendant excepted. Thereupon the following proceedings were had: "The court said: 'Upon motion of the defendant and by his consent, prayer for judgment is continued for twelve months on condition defendant be of general good behaviour and that he pay into the office of the Clerk of the Superior Court a fine of $25.00 and costs. If it is made to appear to the Court that the defendant has not been of general good behaviour and has violated any of the laws of the State, the Solicitor is directed to pray the judgment of the Court.' Counsel for defendant: 'May I make my appeal entries?' Thereupon Judge Phillips made the following statement: 'Strike the judgment out, ' and dictated the following judgment: 'That the defendant be confined in the common jail of McDowell County for a term of ninety days, ' and to which judgment the defendant promptly excepted and appealed to the Supreme Court of North Carolina."

Harry McMullan, Atty. Gen., and T. W. Bruton and G. B. Patton, Asst. Attys. Gen., for the State.

Charles Hutchins, of Burnsville, for defendant.

DEVIN, Justice.

The defendant assigns as error certain rulings of the court below relating to the admission of testimony, but upon examination we find the exceptions without substantial merit. The motion for judgment as of nonsuit was properly denied.

The statute for violation of which this defendant was convicted, C.S. § 4310, was amended by Chap. 258, Public Laws 1941, but the language defining the acts made unlawful, as charged in the warrant, was unchanged. The original statute applied only to McDowell and certain other counties. The amendment made the provisions of the act state-wide, but applicable "only in those counties under the protection of the State Forest Service in its work of forest fire control." There was evidence tending to show that those in charge of the State Forest Service for the purpose of fire control were...