State v. Wilson
| Decision Date | 01 November 1933 |
| Docket Number | 241. |
| Citation | 171 S.E. 338,205 N.C. 376 |
| Parties | STATE v. WILSON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Burke County; Warlick, Judge.
June Wilson was convicted of wantonly and willfully burning another's barn, and he appeals.
No error.
Admission of evidence concerning accused's silence in face of accusation by owner's child of barn burning held not prejudicial, where cumulative and made when accused had knowledge of accusation by others and accused was inquiring of owner about cost of harness.
Criminal prosecution tried upon indictment charging the defendant with wantonly and willfully burning a barn, the property of W. A Lowman, in violation of C. S. § 4242.
W. A Lowman is a farmer living in Burke county. His barn was burned about 1 a. m. Sunday morning, April 9, 1933. His horses were saved, but his cow was not. The defendant is a fisherman living in a shack on the western bank of the Catawba river.
A fresh boot track was found not far from the barn which led across the bottom and in the direction of June Wilson's shack. It is in evidence that this track was made by the defendant's boots. The defendant thought the track might have been made on Saturday afternoon as he was going after some liquor. He said to one of his neighbors between 2 and 3 o'clock Sunday morning, "I played hell up the creek tonight." And when the officers came to his house, or shack, later in the morning and said to him that Mr Lowman's barn was burned last night, "he did not make any answer to that, but said they played hell with my fish trap last night." Bob Wilson, brother of the defendant, who was with the officers and neighbors, after looking at the boots, said to the defendant, "You are the fellow that burned Mr. Lowman's barn." To this the defendant made no reply.
On the following day the defendant stopped by the home of W. A Lowman, sat down on the edge of the porch, and sought to engage him in a conversation with respect to the cost of his new harness, etc. Lowman had very little to say; did not answer his questions. Presently Lowman's little 3 year old grandchild said to the defendant. "You burned our cow." The defendant made no answer, but pretty soon thereafter he got up and left. Objection by defendant to the introduction of this evidence; overruled; exception.
The defendant offered no evidence, but moved to dismiss the prosecution as in case of nonsuit. C. S. § 4643.
Verdict: Guilty.
Judgment: Thirty months on the roads.
The defendant appeals, assigning errors.
D. L. Russell, of Hickory, for appellant.
Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.
The defendant grounds his motion for dismissal of the prosecution on the insufficiency of the evidence to show any felonious origin of the fire, or to identify the defendant as the culprit, citing State v. Church, 202 N.C. 692, 163 S.E. 874, but we think these facts, or the corpus delicti, may reasonably be inferred from the attendant circumstances. Not only does it appear that the defendant made the tracks found near the barn, but also that he remained silent in the face of the statement by his brother, in the presence of the officers, "You are the fellow that burned Lowman's barn." State v. Jackson, 150 N.C. 831, 64 S.E. 376. The occasion was such as to call for a reply, or to render the defendant's silence at that time tantamount to an admission by acquiescence of the truthfulness of said statement. State v. Burno, Portee & Tucker, 200 N.C. 142, 156 S.E. 783, 80 A. L. R. 1229.
The general rule is that statements made to or in the presence and hearing of a person, accusing him of the commission of or complicity in a crime, are, when not denied, admissible in evidence against him as warranting an inference of the truth of such statements. 1 R. C. L. 479.
It is the occasion, colored by some circumstance or significant conduct on the part of the accused, which renders such statements, otherwise incompetent as hearsay, admissible in evidence. State v. Evans, 189 N.C. 233, 126 S.E. 607.
Indeed, it has been said that the acquiescence of a party, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party, and, whether it be acquiescence in the conduct or in the language of others, it must plainly appear that such conduct was fully known, or such language fully understood by the party, before any inference can be drawn from his passiveness or silence. The circumstances, too, must not only be such as afford him an opportunity to act or speak, but such also as would properly and naturally call for some action or reply, from men similarly situated. Taylor on Evidence, § 733.
When a statement is made, either to a person or within his hearing, implicating him in the commission of a crime, to which he makes no reply, the natural inference is that the imputation is perhaps well founded, or he would have repelled it. State v. Suggs, 89 N.C. 527. But the occasion must be such as to call for a reply. "It is not sufficient that the statement was made in the presence of the defendant against whom it is sought to be used, even though he remained silent; but it is further necessary that the circumstances should have been such as to call for a denial on his part, and to afford him an opportunity to make it." 16 C.J., 659.
Silence alone, in the face or hearing of an accusation, is not what makes it evidence of probative value, but the occasion, colored by the conduct of the accused or some circumstance in connection with the charge, is what gives the statement evidentiary weight. State v. Burton, 94 N.C. 947; State v. Bowman, 80 N.C. 432. Ashe, J., in Guy v. Manuel, 89 N.C. 83.
Due to the manifold temperaments of people and their varying conceptions of the fitness of things, the character of evidence we are now considering is so liable to misinterpretation and abuse that the authorities uniformly consider it as evidence to be received with great caution and, except under well-recognized conditions, hold it to be inadmissible altogether. Hence, unless the party at the time was afforded a fair opportunity to speak, or the statements were made under circumstances and by such a person as naturally called for a reply, the evidence is not admissible at all. State v. Jackson, 150 N.C. 831, 64 S.E. 376. "The silence of the accused may spring from such a variety of motives, some of which may be consistent with innocence, that silence alone is very slight evidence of guilt; and, aside from the inference which may arise from the attendant circumstances, should be received with caution as proof of guilt." Underhill Crim. Ev. (3d Ed.) § 209. It is readily conceded that "mere shadows of confessions,"...
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