State v. Stephenson

• Decision Date: 09 October 1940
• Docket Number: 219.
• Citation: 10 S.E.2d 819,218 N.C. 258
• Parties: STATE v. STEPHENSON.
• Court: North Carolina Supreme Court

10 S.E.2d 819

218 N.C. 258

STATE v. STEPHENSON.

No. 219.

Supreme Court of North Carolina

October 9, 1940

Criminal prosecution tried upon indictment found at March Term, 1940 of Superior Court of Johnston County, charging the defendant in separate counts with (1) wilfully and knowingly presenting a false and fraudulent claim, and false and fraudulent proof of such claim, for the payment of a loss upon a contract of fire insurance on cured leaf tobacco, C.S. § 4369, as amended by Pub.Laws 1937, c. 248; and (2) feloniously burning his tobacco packhouse with fraudulent intent to collect insurance.

To each charge the defendant pleaded "Not guilty".

Upon the trial below, at the close of evidence for the State motion of defendant for judgment of nonsuit on the second count was allowed, C.S. § 4643, and the trial continued as to the charge in the first count, to wit:

That defendant "did unlawfully and wilfully, wantonly and feloniously, knowingly present and caused to be presented a false and fraudulent claim and false and fraudulent proof of claim, in support of said claim, upon the payment of a loss on a fire insurance contract of insurance and did subscribe and make affidavit to a false and fraudulent proof of loss in writing, with intent that the same should be presented and used in support of such claim to the profit of the said A. P Stephenson, said claim for loss being for destruction by fire of certain leaf tobacco alleged in said claim and proof to be of the value of $2882.79 ***".

Evidence offered by the State in regard to the first count tended to show substantially these facts: On August 1, 1939, defendant obtained from Allemania Insurance Company of Pittsburgh, Pa through its agency at Dunn, N. C., a policy of fire insurance for $3,000 covering cured leaf tobacco, grown, and in pack barn on lands owned by him and his wife, in Johnston County. The packhouse and contents were destroyed by fire about 11:30 P. M. on August 16, 1939. The policy of fire insurance was in effect at that time. On the morning of August 17, about 8:30 o'clock, defendant went to office of agent of Insurance Company and reported the loss and "said he had already consulted three attorneys to look after his claim and he meant business".

On October 5, 1939, defendant made proof of loss to the Insurance Company, in which, among other things not essential to consideration of this appeal, he stated that there has been no change in ownership or assignment of the tobacco except 2,536 sticks to I. B. McLamb; and that the cash value of the tobacco at the time of fire, and loss and damage, were $2,882.79. The proof was sworn to and subscribed by defendant before a Justice of the Peace.

The State offered further evidence: The witness Willard Gordon, who was visiting daughters of defendant at his home at the time fire was discovered, testified: "We all went to it *** the building was on fire all over when I first saw it *** I did not see any tobacco in the packhouse *** There were three doors to the packhouse and they were open during the fire ***". Then on cross examination, he continued: "I did not see any tobacco in the packhouse at the time of the fire because you couldn't tell whether there was any tobacco in the house or not due to the fire and smoke. I don't know how much tobacco was in the barn when it burned".

The witness Sam McGee, who went to the fire testified: "The whole building was on fire at that time and I could not tell whether there was any tobacco in the barn or not *** I could not tell anything about how much if any tobacco was in the barn during the fire, for you couldn't see for the smoke and fire". He further testified that while the fire was raging he heard the defendant "say that he had lost the best of his crop of tobacco, and as best I remember he said there were 4,600 sticks of his crop burned".

The witness Willard Gordon swore that he heard defendant make such statement to McGee.

The State's evidence also tended to show that at the time of the fire defendant had two tobacco barns full of tobacco curing near the fire. There was evidence also to the effect that defendant "had 15 or 16 acres of good tobacco that year", as Gordon expressed it. McGee's opinion was, "15 acres of fair tobacco that year", and again, that he "had a good crop of tobacco and might have had 16 acres". Neither of the witnesses for the State knew how many times defendant had barned, but each knew that McLamb had hauled some tobacco away, three or four loads McGee thinks, but does not know how many sticks were carried to the load.

Also the witness Willard Gordon, when first on the stand, testified: "I do not recall hearing Myrtle Stephenson say that there wasn't any tobacco in the packhouse, and Purvis replying to keep her damn mouth shut about that". But, on being recalled, he stated: "I heard a conversation between Purvis Stephenson and Myrtle Stephenson in which Myrtle said: 'There wasn't much tobacco in the barn', and Purvis Stephenson, the defendant, replied: 'Keep your mouth shut about that"'.

State's witness Clyde Andrews testified that he worked with defendant that year and on having trouble left on August 5th; that defendant had 15 acres of tobacco and he had one; that when he left "we had barned four times and put it all in the packhouse with the exception of what Mr. I. B. McLamb hauled and one load carried to Smithfield to be graded"; that he had 575 sticks in the barn when he left; that defendant's "girls also had an acre and they packed theirs in the barn too", but that he did not know how much tobacco was in the barn at the time of the fire.

The State also introduced without objection the verified complaint which defendant had filed on November 25, 1939, in a civil action instituted by him in Superior Court of Johnston County against the Allemania Fire Insurance Company of Pittsburgh, seeking to recover on the policy of fire insurance and in which it is alleged "that said barn contained approximately 10,100 sticks of cured tobacco, and which was stored in said barn, all, belonging to the plaintiff, and being the identical tobacco described in said insurance policy; that the tobacco described was of high quality, and the average weight of each stick was not less than one and three-fourths pounds; that at the time said tobacco was destroyed by fire the reasonable market value for the same was not less than $2,882.79, based on the market average, at the time, in this part of the State. That the tobacco destroyed consisted of the entire crop grown on fifteen acres of land except 2,536 sticks of primings which was stored with I. B. McLamb in the town of Benson".

At close of evidence for the State, motion of defendant for judgment of nonsuit on both counts, C.S. § 4643, was allowed as to second count of burning packhouse, but denied as to the first count. Exception by defendant.

Defendant offered evidence tending to show that he had 16 acres of "good, 'unusually good' tobacco", that would average "about 1,000 pounds to the acre" "at least"; that Clyde Andrews had one acre and defendant's daughters one acre; that he had two barns in which to cure his tobacco,--one a "16-foot barn" that would take care of about 800 sticks, and the other a "20-foot barn" that would take care of about 1,200 sticks; that he had barned six times when the fire occurred and was "through with the exception of the tips", which were put in another barn; that as fast as the tobacco was cured it was put in the packhouse; that at the time of the fire all of defendant's tobacco crop, as well as that of daughters and of Clyde Andrews, was in the packhouse with the exception of 4,426 pounds which had been delivered to I. B. McLamb, and hauled to Smithfield.

Charles Beasley, witness for defendant, who after testifying that he had been helping defendant barn tobacco for two or three weeks, said: "I know that all his tobacco was in the packhouse the night of the fire with the exception of 4,000 pounds Mr. McLamb got. On the evening of the fire I went into the pack barn to eat my lunch and all his crop of tobacco was in there. I know that it was not moved before the fire and was burned in the fire. I do not know exactly how many sticks was there but to the best of my judgment I am sure there was as much as 6,000 sticks. I know that Mr. Stephenson didn't burn the barn because I was there that night when he come".

I. B McLamb, testifying in behalf of defendant, said: "I furnished the labor for...