State v. Smith

• Decision Date: 21 December 1977
• Docket Number: No. 7726SC428,7726SC428
• Citation: 34 N.C.App. 671,239 S.E.2d 610
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Herbert A. SMITH, Jr. and Billy A. Garris.

Page 610

239 S.E.2d 610

34 N.C.App. 671

STATE of North Carolina v. Herbert A. SMITH, Jr. and Billy A. Garris.

No. 7726SC428.

Court of Appeals of North Carolina.

Dec. 21, 1977.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Patricia Hodulik, Raleigh, for the State.

W. Faison Barnes, Charlotte, for defendants-appellants.

VAUGHN, Judge.

Defendants contend that the court erred in failing to grant their motions for nonsuit on the charges of unlawful burning. Defendants correctly argue that the burden was on the State to prove (1) the fire, (2) that it was of incendiary origin, and (3) the connection of the accused with the crime. State v. Cuthrell, 233 N.C. 274, 63 S.E.2d 549 (1951). They primarily argue that the State failed to show that the fire was of incendiary origin.

The State is, of course, entitled to every favorable inference that arises from the evidence, direct or circumstantial. The evidence was sufficient to permit the jury to find that defendants decided to burn their business to collect the proceeds from the fire insurance policy. They tried to recruit Greene to start the fire. They acquired a large quantity of lacquer thinner that was not then needed for any legitimate purpose. On the day of the fire, they moved the lacquer thinner from where it had been stored to the area where the damage from the fire was concentrated. The drum was turned over, and the spigot was loosened. The tenant, Long, was made to move on the day of the fire because, as defendant Smith told him, the building was "going up." They gave the employee Greene the afternoon off. Less than an hour before the fire was started, Smith called Greene and asked if he had an alibi because things were ready to "go down."

Based upon his professional examination of the crime scene, about which he testified in considerable detail, Lane, an expert in the field of arson investigation, was of the opinion that the fire was intentionally set. We conclude that the evidence, taken in the light most favorable to the State, was sufficient to take the case to the jury on the charges of unlawful burning. State v. Moore, 262 N.C. 431, 137 S.E.2d 812 (1964); State v. Clark, 173 N.C. 739, 91 S.E. 372 (1917); State v. Caron, 26 N.C.App. 456, 215 S.E.2d 878 (1975), aff'd, 288 N.C. 467, 219 S.E.2d 68, cert. den., 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 794. In summary, we will repeat what was said in State v. Moses, 207 N.C. 139, 141, 176 S.E. 267, 268 (1934):

"The State's evidence in this case is sufficient to establish a motive and an opportunity for the defendant to commit the crime, that the fire was of an incendiary origin, and many other damaging circumstances tending to show defendant's guilt. However, it is not the fact of motive, or of opportunity, or of incendiary origin of fire, or of any other single circumstance taken by itself, but it was all of these circumstances, considered as a whole and in their relation to each other, that made it incumbent upon the court to submit this case to the jury. These related circumstances likewise warranted the jury in deciding the issue against the defendant. S. v. Clark, 173 N.C. 739, 91 S.E. 372.

When each circumstance going to make up the evidence relied upon depends upon the truth of the preceding circumstance, circumstantial evidence may be likened unto a chain, which is no stronger than its weakest link; but, as in this case, when there is an accumulation of circumstances which do not depend upon each other, circumstantial evidence is more aptly likened to the bundle of twigs in the fable, or to several strands twisted into a rope, becoming, when united, of much strength."

Defendants contend that it was error to allow the arson expert, Lane, to state that, in his opinion, the fire was of incendiary origin. We must overrule the exception. The opinion was based on the expert's own examination of the premises. He testified in detail about what he found and the basis for his opinion. The only pertinent fact about which the witness had no personal knowledge was the location of the drum of lacquer thinner immediately after the fire. That fact, which was brought out by other testimony, was made a part of the hypothetical question. Unlike the witnesses in Keith v. Gas Co., 266 N.C. 119, 146 S.E.2d 7 (1966), Lane did not base his opinion on an hypothesis not supported by any evidence. The expert was properly allowed to give his opinion. State v. Moore, supra; State v. Reavis, 19 N.C.App. 497, 199 S.E.2d 139 (1973).

Defendants contend that their motions for nonsuit on the conspiracy charges should have been allowed. The question is, therefore, whether there is evidence from which the jury could infer that defendants unlawfully concurred in an agreement to do an unlawful act. State v. Butler, 269 N.C. 733, 153 S.E.2d 477 (1967). The evidence, as previously discussed, clearly supports the inference that there was a union of wills between Smith...