
    STATE v. WILL GRIFFITH.
    (Filed 26 May, 1923.)
    1. Criminal Law — Tobacco Barns — Burnings—Statutes—Foot Tracts— Evidence — Identification.
    Upon the trial for the unlawful burning of a tobacco barn, C. S., 4244, there was evidence tending to show the foot tracks of the accused and another at the barn, discovered after the fire; that these two were seen by several drinking together during the night in question, and they were traced by their tracks to a mill that had also been fired the same night; that previously the accused and his companion said that the prosecutor was responsible for the breaking up of their illicit still by the officers at a prior time, and that they would get even with him. There was further evidence that a witness saw the accused and his companion together about 12:30 a. m. of the night in question, and after letting them pass, examined their tracks and found them identical with those traced from the barn destroyed: 3eld, sufficient of the accused’s motive in burning the barn and of his identification as the one who set it afire, and to refuse a motion as of nonsuit; and the evidence of the tracks, etc., to the mill was not objectionable as tending to show his guilt of a different offense than the one charged.
    2. Instructions — Criminal Law — Reasonable Doubt — Appeal and Error.
    The charge of the trial judge in this criminal action upon the doctrine of reasonable doubt is not subject to valid objection.
    3. Criminal Law — Evidence—Appeal and Error.
    Where there is evidence tending to show that the defendant, indicted for the unlawful burning of a tobacco barn, and another, were seen drinking together on the night in question, each participating equally in the commission of the unlawful act, it is competent to show that thereafter his companion had fled the State to avoid arrest and trial.
    Appeal by defendant from McElroy, J., at August Term, 1922, of Davie. '
    The defendant was convicted of burning a tobacco barn, and from the judgment upon such conviction, appealed to this Court.
    Defendant’s exceptions 5 and 6 were addressed to the refusal of >the judge, at the conclusion of the State’s evidence, to give judgment as of nonsuit against the State, and again at the conclusion of all the evidence.
    The indictment was based upon 0. S., 4244: “Every person convicted of the willful burning of any gin house or tobacco house, or any part thereof, shall be imprisoned in the State’s Prison not less than two nor more than ten years.”
    The State’s evidence tended to show that some time during the night of 23 December, 1920, a tobacco barn of J. W. Douthit, otherwise called Jack Douthit, was burned. The same night the sawmill of M. W. Allen was badly and evidently maliciously injured by the same persons, as the State contended, wbo bad burned tbe barn of Doutbit. Tbe defendant Will Griffith was identified witb tbis burning by tbe following circumstances :
    Tom Martin bad fled and bad never been arrested. Allen and Doutbit —Allen at tbe time knowing nothing of tbe injury to bis mill — upon bearing of tbe burning, and on tbe morning of 24 December, went to tbe place and found tbe barn a mass of smoldering ruins. , At and near tbe barn they discovered two new and distinctive tracks. These tracks they followed from tbe barn, measuring them from time to time, and they being plainly.made in plowed ground by two persons wbo manifestly were running. They followed these tracks to within one hundred yards of tbe defendant Will Griffith’s bouse. There they saw Will Griffith coming from bis home. After be bad passed tbis time they immediately measured bis track, as then made, and it corresponded exactly witb one of tbe tracks made in going to and coming from tbe barn.
    One of tbe men making these tracks bad on a pair of rubber boots or shoes which fitted tbe longest track. Tbe other was made by a kind of square-toed shoe. Tbe latter corresponded precisely witb tbe tracks made by Will Griffith when Doutbit and Allen saw him coming from bis bouse tbe next morning. They also corresponded with tbe tracks made to Will Griffith’s bouse at tbe time tbe two men coming from tbe barn separated tbe night before. They followed the- other track (tbe rubber-shoe track) towards tbe bouse of Tom Martin. They tracked them to within fifty or one hundred yards of Griffith’s and Martin’s bouses. After the blunt-toed track, which led to Will Griffith’s bouse, left tbe rubber-shoe track, tbe latter continued to Tom Martin’s bouse. Then these two men, Doutbit and Allen, went to tbe mill of M. W. Allen, having beard of tbe injury done to it, and found that at and near tbe mill were tbe same two tracks, tbe square-toed track and tbe rubber-shoe track.
    A few days before tbis occurrence, tbe prosecuting witness, Doutbit, and Mr. Allen, went along witb prohibition officers to tbe “cutting up” of a still near tbe home of Douthit’s mother. Tbe defendant Griffith saw both Doutbit and Allen going witb tbe officers to this.still place where tbe still outfit was cut up at tbe time. It is clear, not only from tbe State’s evidence, but from tbe evidence of tbe defendant himself, on bis cross-examination, that tbe defendant Will Griffith was engaged witb Tom Martin in tbe liquor business. They were seen, on tbe afternoon of 23 December, drinking together, and drinking too much.
    Tbe witness Lee Wood testified that Griffith and Tom Martin passed bis bouse about 12:30 on tbe morning of 23 December, going east toward their homes. J. L. Riddle testified that be saw both Will Griffith and Tom Martin on 24 December near Doutbit’s store, both drinking and under tbe influence of liquor. Martin, in tbe presence of Griffith, referring to tbe Douthits, declared: “They have done us dirt, and we will get even with them,” meaning that they bad destroyed their still and that they would “get even with them,” or punish them for it.
    
      Attorney-General Manning and Assistant Attorney-General Nash for the State.
    
    
      Holton & Holton and A. T. Grant, Jr., for defendant.
    
   Wal:keb, J.,

after stating tbe case: We are of tbe opinion that tbe evidence, thus shortly stated, and interpreted according to tbe rule applied by this Court in determining tbe correctness of tbe ruling below refusing to grant judgment as of nonsuit, is sufficient to go to tbe jury upon tbe question of defendant’s guilt. There was motive, opportunity, and direct evidence connecting him (Griffith) with tbe commission of tbe crime, which is to be inferred from tbe nature and character of tbe tracks which led to tbe bouses of both men, tbe blunt-toed brogan-track to defendant Griffith’s bouse, and tbe rubber-shoe track to Martin’s bouse. As far as it is possible to identify tracks, these were shown to be those which bad been made by defendant Griffith and Tom Martin, and conclusively so, if tbe witnesses were to be believed and their testimony was true. Tbe defendant Griffith’s testimony, if believed, showed an alibi, but as to this an issue was fairly submitted, and tbe jury, having found it against tbe defendant, evidently did not believe bis evidence. Tom Martin was thus identified with tbe defendant Will Griffith, and Tom Martin left tbe country as soon as be found that be was indicted.

Defendant’s exception 1 was addressed to this part of tbe testimony of Douthit on bis redirect examination:

“Q. Where is Tom Martin ? A. I don’t know.
“Q. Has be left tbe country? (Defendant objects.) By tbe Court: ‘I think that is competent, as they have introduced evidence tending to identify tbe tracks belonging to tbe two men.’ Objection overruled, defendant excepts. A. Tom left tbe country when be found out be was indicted. .He has not been in this country since that I know of.”

The two men, according to all the evidence, were drinking together the afternoon of 23 December, were together when threats were made against Douthit by Martin, were together at 12:30 o’clock the morning of the burning, and the tracks were not only found side by side at the burned barn, but also at Allen’s mill, and were followed from the barn, the one pair to Griffith’s bouse, and the other pair to Martin’s bouse. If ever two men were engaged in a common enterprise, these two men were. If, however, there was any error in the admission of this testimony, that error was cured by the testimony of the defendant himself.

Exception 2 was to the admission of testimony of two men running away from Allen’s mill the nigbt it was injured. the witness did not know either Will Griffith or Tom Martin, but it bad been established by the State’s evidence that the same men who burned Douthit’s barn did the injury at Allen’s mill, and this was a circumstance to show that two men at the time were engaged in both offenses, and is admissible on the score of common-enterprise, or as evidence of identity.

Exceptions 3 and 4 were taken to evidence that was plainly admissible for tbe same reason stated under exception 2.

Exception 7 was to part of tbe judge’s charge upon tbe doctrine of reasonable doubt. This, however, has no foundation, as tbe judge’s charge will show, which was as follows:

“Now, gentlemen, these are the contentions of the State and defendant. the law presumes that this defendant is innocent, and presumption of innocence remains with him until the State satisfies you beyond a reasonable doubt of bis guilt. And reasonable doubt is something different from a mere shadow of a doubt or fanciful doubt.” the court, then, correctly explained to the jury what is meant by a reasonable doubt, and, after doing so, told the jury that upon due consideration of all the evidence in the case, if they were satisfied of the guilt of the defendant in the case, the State was entitled to a verdict. “In other words, the burden is on the State to satisfy you beyond a reasonable doubt of the guilt of this defendant. If the State has satisfied you beyond a reasonable doubt that the defendant, in company with Tom Martin, set fire to and burned the barn of Mr. Jake Douthit, on-the nigbt of 23 December, then, gentlemen of the jury, the court charges you that be is guilty, and it is your duty to so find, and if the State has failed to so satisfy you beyond a reasonable doubt of. bis guilt, it is your duty to give the defendant the benefit of any reasonable doubt there may be in your minds and return a verdict of not guilty.”

As to the evidence relating to the tracks, see S. v. Daniels, 134 N. C., 641; S. v. Adams, 138 N. C., 688; S. v. Hunter, 143 N. C., 607; S. v. Freeman, 146 N. C., 615; S. v. Taylor, 159 N. C., 465. The case of S. v. Adams, supra, seems to answer several of the objections raised in this appeal, and especially with respect to evidence as to motive, the tracks, and as to what was discovered at the mill.

The object of introducing evidence as to the tracks of the two men leading up to the mill, which bad been injured, was not to show that another and different crime bad been committed, but of tracing up both sets of tracks, those leading to the barn and those which led to the mill, fpr the ultimate purpose of identifying the parties who made them as being the same persons, there being also some evidence tending to show, or from which the jury might infer, that they were seen the same nigbt at the mill, as well as at the barn wbicb was burned. It was not tliat they were guilty of another and collateral offense, but rather as tending to prove that they were the same men who bad applied the torch to the mill, by their continued association with each other that night. It was all one continuous and connected transaction, the effort being principally, if not wholly, to follow the tracks so as to fully identify these nightly marauders as being the persons who were 'also the incendiaries, and not to establish a distinct substantive offense in violation of the rule relied on by the prisoner, such as S. v. McCall, 131 N. C., 798; S. v. Shuford, 69 N. C., 487; S. v. Frazier, 118 N. C., 1257; S. v. Alston, 94 N. C., 930. the evidence also tended to establish, not only the identity of the persons who burned the mill, both by the tracks, and the malice they evidently bad toward J. W. Douthit and M. W. Allen, the owners of the property destroyed, this supplying the motive for their conduct. If a person has the malice, or motive, to burn a mill (S. v. Adams, supra), and there are other means of identifying him as the .culprit, both may be shown as evidence of bis guilt, without being obnoxious to the rule, excluding facts relating to a separate, distinct, and collateral offense. There never was a clearer or more conclusive showing that the tracks were those of Griffith and bis associate in the crime, and that they were out that night to avenge the destruction of the still, they being engaged in the illicit manufacture of whiskey. Whether the evidence was sufficient for a conviction was distinctly and solely for the jury to decide, there being some evidence of guilt, the jurors being the judges of its weight or strength.

There was no error in tbe case, and it will be so certified.

No error.

Adams, J.

This opinion was written by Mb. Justioe WalkeR. in accordance with tbe decision of tbe Court, but was filed and adopted after bis death'.  