State v. . Jaynes , 78 N.C. 504 ( 1878 )

1. There was no evidence that the prisoner burned (506) or caused the mill to be burned with the intent to prevent the detection of his alleged embezzlement or theft. His Honor then might well have refused to give the instructions asked upon this point. But he did give instructions upon the hypothesis that such evidence had been offered, and though they ought to have been refused, we think they were substantially correct as given.

2. The court charged the jury that it was "essential to the successful proof of an alibi that it should cover the whole time of the transaction in question, and when it fails to do so it is regarded as the most suspicious of evidence; that the witnesses all testified to having retired by 10 o'clock; and it was for the jury to say whether the prisoner might have left, or did leave his bed, commit the deed, and return before the alarm of fire was given." The first part of this charge would have been erroneous, but for the correction and qualification subsequently added. It is not "essential to the successful proof of an alibi, it should cover the whole time of the occurrence." Whether it covers the whole, or a part only, the effect of the evidence is a matter for the jury, and they may give it the weight they may think it entitled to. The evidence was competent and therefore admissible, and it was an invasion of the province of the jury to tell them that unless the proof covered the whole time of the transaction it lacked the essential element of successful proof. The burden of proving an alibi did not rest upon the prisoner. The burden remained upon the State to satisfy the jury upon the whole evidence of the guilt of the prisoner. It was only necessary for the prisoner in his defense to produce such an amount of testimony, whether by evidence tending to show an alibi or otherwise, as to produce in the minds of the jury a reasonable doubt of his guilt. But we think the subsequent part of the charge immediately following had the effect of curing the error of (507) the first part, by presenting to the jury the true way of passing upon the evidence of the alibi, to wit: "that it was for the jury to say whether the prisoner might have left, or did leave his bed, commit the deed, and return before the alarm of fire was given." And in giving this instruction it was not improper to add those usual cautions which are necessary in dealing with this kind of evidence, which is regarded with suspicion unless it should cover the whole time of the transaction. Such evidence for the State, if believed, makes out a clear case of guilt; though doubtless there may be cases where it is the only evidence in the power of the defendant to give, and where justice can be vindicated only by introducing it. But under even such circumstances it should be closely scrutinized because of its liability to abuse.

3. The court admitted parol evidence of the ownership of the mill. This was proper. The title was not in issue, and if it had been, proof of possession was prima facie evidence of title and sufficient. S. v. Roseman,66 N.C. 634.

4. A motion in arrest of judgment was made for the insufficiency of the indictment. The charge in the bill is that the prisoner "feloniously, unlawfully, and maliciously did set fire to and burn one mill there situate," etc. It is insisted that the indictment fails to describe the kind of mill, so as to show that it was such a mill as the law has taken under its protection. The indictment is framed upon chapter 228, Laws 1874-75, so much of which as is necessary to our case is in the following words: "Whoever shall unlawfully and maliciously set fire to any church, chapel, or meeting-house, or shall unlawfully and maliciously set fire to any house, stable, coach-house, outhouse, warehouse, shop, mill or granary, . . . shall be guilty of felony," etc. The indictment, it is seen, pursues the words of the act, which the authorities inform us is generally the safest and best way of charging a statutory offense. It is unreasonable to suppose that the act had reference to any other than (508) mills constructed for manufacturing purposes. This is evident from its association in the act with other property of the highest value, such as warehouses, granaries, churches, chapels, and meeting-houses. But this act must be taken in connection with the other statute laws of the State in pari materia, and by reference to Bat. Rev., ch. 72, title, "Mills," it will be found that the several kinds of mills are designated, and regulations are prescribed for their use and government. Gristmills are among those named, and are declared to be public mills. The act in question was clearly intended to protect grist-mills, which the evidence discloses this to have been. We think no one could be misled as to the offense charged.

PER CURIAM. No error.

Cited: S. v. Phifer, 90 N.C. 723; S. v. Starnes, 94 N.C. 980; S. v.Daniel, 121 N.C. 576, 577; S. v. Sprouse, 150 N.C. 861; S. v. Rochelle,156 N.C. 642.

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