State v. Sandy

• Decision Date: 30 June 1843
• Citation: 3 Ired. 570,25 N.C. 570
• Parties: STATE v. SANDY, (A SLAVE.)
• Court: North Carolina Supreme Court

3 Ired. 570

25 N.C. 570

STATE

v.SANDY, (A SLAVE.)

Supreme Court of North Carolina.

June Term, 1843.

A building, in which goods are kept for sale by a retail merchant, is a “storehouse,” within the meaning of the act of Assembly, Rev. St. ch. 34. s. 1.

A room in a large building, which room was separately leased by the owner of the building to a merchant who occupied it as a store, and having no direct communication with the other parts of the building, is properly laid in an indictment for arson as the property of the lessee.

To constitute arson, the least burning of the house is sufficient. The charring of the floor to the depth of half an inch is certainly sufficient.

Where there is but one statute, an indictment which concludes against the form of the statutes, is bad, and, after conviction, judgment will be arrested. Where there are more than one statute, a conclusion against the form of the statute is also bad.

The cases of the State v Jim, 3 Murph. 3. Scroter v Harrington, 1 Hawks 192. State v Muse, 4 Dev. & Bat. 319, cited and approved.

Appeal from the Superior Court of Law of New Hanover County, at Spring Term, 1843, his Honor Judge SETTLE presiding.

This was an indictment against the prisoner for burning the store-house of Hugh M. Cowan, and concluded “against the form of the statutes, &c.” The prisoner on his arraignment pleaded Not Guilty. On the trial, Hugh M. Cowan, the first witness on the part of the State, testified, that he was a retailer of groceries and dry goods in the town of Wilmington, and rented from Hector McKellar a tenement in a large building, the upper part of the building being occupied by the said Hector McKellar--that the tenement occupied by the witness had been, for several years, commonly occupied as a store, and an adjoining tenement, occupid by one Alfred Dudley at the time of the transaction which gave rise to this indictment, had been commonly, and was at the time spoken of, also used as a store--that the whole of the building, being under one roof, was owned by one Edward P. Hall, who leased to Alfred Dudley one tenement, and to Hectar McKellar the rest of the building--that the term of the witness in his lease began in October 1842, and would expire in October, 1843-- that the tenement occupied by the witness had no internal communication with any other part of the building, and there was no ingress to or egress from it, except by the street or a back yard--that the witness had no other depository either for his dry goods or groceries, among the latter of which were hogsheads of molasses and other heavy articles, besides the said tenement--that the said tenement consisted of two rooms, although the door-way between them had no shutter, but always remained open--that the witness was acting in his business entirely on his own account and without any partner--that on the evening of the 21st of January, 1843, he shut up his store about half past nine o'clock, and retired to his lodgings in another house--that about three o'clock on the following morning, being Sunday morning, he was aroused from his slumbers by one of the town watch, who informed him that his store had been broken open, robbed and set on fire--that he immediately went to his store and found that the door had been forced open--that the floor was on fire, or at least that the goods lying on it were so, although the fire had apparently been deadened by throwing water on it--that he proceeded to extinguish the fire entirely, and found that the floor was charred in three places, in one to the depth of half an inch, in another to the depth of a quarter of an inch, and in another it was only superficially charred--that the counter was also charred--that a barrel of flour was nearly consumed--that some of his goods were burned, others missing, and what remained very much injured, so that his property in the store, in one way or another, was nearly destroyed--that, the next day, goods, which he identified as his, were brought to him--that, having reason to believe that the prisoner, who was then in custody, though not upon any warrant, was the perpetrator or one of the perpetrators of the act, he asked “what had become of the rest of his sugars?” to which the prisoner replied, “that the boat was so heavily loaded that he had thrown it overboard”--that he then asked the prisoner, how he got into the store, to which the prisoner replied that he forced the door with crow bars--that he then asked the prisoner, who put the fire to the store, to which the prisoner replied that he did, but he did not do it alone, and then mentioned another negro who assisted him--that he was then asked how he got a light, to which he replied, that there were some matches which he lighted, and, having lighted a candle, took two boxes of matches, and, after having lighted them, put them on the floor and piled the goods upon them--that all this the prisoner answered, without any violence, threats or persuasions having been used to him by any one, and without any appeal whatever having been made to his hopes or his fears.

Skipper, one of the town guard, testified, that about two o'clock on Sunday morning, the 22d of January, he discovered a light in the store of Hugh M. Cowan, and, on pushing the door with his stick, found it was not fastened-- that on entering, he found the house full of smoke and a pile of goods in a light blace on the floor--that one of his fellow-guards, who was with him, brought some water and threw it upon the fllames, which being thrice repeated the fire was deadened--that he then sent for Mr. Cowan, who soon came. The witness then described the effects of the fire in the same manner as the preceding witness. Several other witnesses were examined, to prove that the prisoner was the perpetrator of the act, but their testimony has no relation to the questions of law arising in the case.

The prisoner was defended on the ground that the proof was insufficient to convict him, but that, supposing all the alleged facts true, first, there was a variance between the allegation and the proof as to the property in the store-house; Secondly, that the tenement set on fire was not such a one as was meant by the term “store house” in the act of Assembly; Thirdly, that the tenement was not so burned, as to constitute the offence from which clergy is taken by the act of Assembly. His Honor, leaving it to the jury to ascertain the facts, informed them that such a building as was described by Hugh M. Cowan, was a store house within the meaning of the act of Assembly--that, if they believed the testimony of Mr. Cowan, it was properly described in the indictment as the store-house of Hugh M. Cowan--and the burning described by the witnesses, if done wilfully and maliciously, was such a burning as rendered the perpetrator an offender against the act of...