
    STATE v. H. D. EDMONDS.
    (Filed 18 April, 1923.)
    1. Criminal Daw — Incendiary — Fires—Evidence—Questions for Jury— Nonsuit.
    Upon a trial of defendant for setting fire to and destroying Ms stock of merchandise, there was evidence tending to show that the corporation of which the defendant was largely the owner was heavily indebted and insured, and that the fire had occurred about 10:30 p. m. shortly after the defendant had been in the store; that the firemen found the store locked, and that no entrance had been forced except those they had made to enter to fight the fires, and that the merchandise had the odor of kerosene which the defendant could not explain, etc.: Held,, sufficient upon which to deny the defendant’s motion as of nonsuit, and to take the case to the jury.
    2. Criminal Law — Evidence—Corroborative Evidence.
    Where, upon a trial of defendant for setting fire to his own store to get the insurance thereon, there is conflicting evidence of the quantity of the merchandise in the store at the time of the fire, and the defendant has become a bankrupt, it is competent for the solicitor to ask the defendant what had become of the stock of goods with reference to the bankruptcy, for the purpose of impeaching his testimony.
    3. Evidence — Hearsay—Appeal and Error.
    What an insurance agent said to a clerk or agent on delivering a policy of fire insurance is hearsay when testified to by the clerk, and incompetent as direct evidence; and if there was error in the court’s excluding it, the error is cured by the agent afterwards testifying as to what he had said to the clerk.
    4. Criminal Law — Evidence—Motive—Identification.
    While motive for the commission of a crime is not necessary to. be directly proved, the existence of the motive may be evidence to show the degree of the crime, and the identity of the culprit.
    
      S. Appeal and Error — Objections and Exceptions — Evidence—Harmless Error.
    The appellant, by objection, must call to tbe attention of the trial judge an erroneous statement he has made in stating his contentions to the jury in time to afford the judge opportunity for correction, and an exception otherwise taken will not be considered on appeal.
    Appeal by defendant from Brock, J., at December Term, 1922, of E ORSYTH.
    Tie defendant was convicted of setting fire to a store building, at December Term, 1922, of Eorsytl Superior Court, Hon. W. E. Brock presiding, and from tie judgment upon sucl conviction appealed to this Court.
    Tie defendant’s principal exceptions were exceptions one and four, wbicl were directed to tie refusal of tie judge to grant judgment as of nonsuit against tie State at tie conclusion of tie State’s evidence, and again at tie conclusion of all tie evidence.
    Tie State’s evidence tended to slow that on 14 April, 1920, tie defendant was operating a store, on Main Street in tie city of Winston-Salem, selling ladies’ and clildren’s wearing apparel, sloes, lats, and men’s clothing — a general line of goods. On tie niglt of tlat day tlere was a celebration in tie city. Tie store of Edmonds was a two-story, witl basement, building, fronting on Main Street, and extending back about sixty feet. On tie second floor tie defendant kept ready-to-wear goods, clildren’s apparel, and ladies’ ready-to-wear, waists, etc. Mud of tlese goods were on tables near tie back end of tie second floor.
    At 10 :46 on tie night of 14 April, 1920, tie alarm of fire called tie fire department to this store. Wlat occurred wlen part of tie fire department arrived there is thus told by H. E. Nissen, chief of tie fire department, who testified: “Tie fire lad not made any considerable leadway when I got there, it lad almost burnt through tie ceiling, but lad not gotten any headway into tie blind attic above. Lieutenant Brown leaded one chemical line in tie rear and I leaded another in tie front door and up tie stairway. I detected tie odor of lot kerosene oil as soon as I started up tie stairway. Tie fire was quickly extinguished with chemicals, but tie odor of kerosene was still prevalent and pervaded tie upper floor to quite an extent. I found some partially burned garments that lad tie odor of kerosene on them. There was a skylight about tie center of tie upper floor that went above tie roof; I examined that and found it intact. In order to get rid of tie smoke, I threw out of tie rear window a lot of tie stuff that was partially burnt, middy blouse, dress, and perhaps something else. H. D. Edmonds came in tie burning building and inquired if all tie things were there, and I told him I lad pitched a considerable quantity out of that window. Later on I missed Edmonds, and inquired where be went, and was told that be bad gone around tbe building, and I went around there and found Edmonds; be bad a garment, and said to me, ‘What is this on here?’ I smelled it and said, 'Kerosene, like tbe others.’ He stated it did not smell like kerosene to him. I do not recall that there was any one with Edmonds at tbe time. Some of tbe goods that smelled like kerosene oil I took out of tbe store that night and later on put them in a can and sealed them up. These are tbe cans, which have been sealed ever since then, and tbe garments. (Cans opened, goods taken out and introduced in evidence and exhibited to tbe jury.) When Edmonds came to tbe store that night, be told me that be bad been out of town most of that day; I asked him where be kept bis matches; be said be didn’t keep any around there; I asked him if be kept any oily rags; be said No’; I asked him if they bad been painting around there any; be said No,’ but later be said they bad been varnishing. I asked him if any of them smoked around there, and be said they did not. However, in a few minutes be rolled a cigarette and lit it; I asked him where they kept tbe kerosene oil, and be said they did not have any. I told him there was some there, and tbe building bad been set on fire; be bung bis bead and said be did not know anything about it. I asked him who bad tbe key to tbe store, and be said be bad tbe only key to tbe store, but later be said tbe clerk bad a key — I won’t say whether that was tbe next day or some subsequent date after tbe fire, I do not recall. He stated that be bad been in tbe store more than once that night, is my recollection, but it is not clear as to tbe number of times nor tbe hours. Tbe building was two-story and basement, which was used for store room, and there was very little in it; tbe first and second floors were not filled, did not seem to have any great quantity of stock there. I examined tbe entrances after tbe fire and found no evidence of breaking in except tbe window and door which were broken open in extinguishing tbe fire. Captain Cofer and I also examined tbe basement door leading to tbe outside, and found it fastened, and found tbe window closed. I examined all of tbe openings; I found no windows broken except those broken by tbe firemen. I went in tbe front, tbe floor is flush with tbe sidewalk; Lieutenant Brown went in on a ladder on tbe top floor; tbe building is three stories in tbe rear.”
    M. J. Brown, captain of fire company No. 2, who broke out a window at tbe back end of tbe store and fought tbe fire through that window, opening into tbe second floor, likewise testified to tbe strong odor of kerosene about that room.
    Tbe defendant Edmonds bad $35,700 of insurance on bis stock. An inventory was taken on 1 January, 1920, which showed a stock of $23,000. An inventory after tbe fire, but before tbe adjusters came, showed $25,440.71. Upon this stock Edmonds was indebted $24,500. Edmonds himself was at this store twice that night after it had been closed, the first time with his wife and children; the second time he went alone to the building after the celebration had ended, he himself claiming that he returned at that time only to turn out the lights, which were left on in front of the building in accordance with the request of the managers of the celebration. The time at which he returned alone, by the State’s evidence, is fixed at somewhere about 10 o’clock or later. Defendant claimed that it was about nine o’clock. He some time previous had complained to the police that some one was entering his store and stealing his goods. He said at that time that they entered through the basement window. Policeman Gofer had, however, arranged that window so that if any one entered he could detect that entry without difficulty, and the night of the fire no one had entered that window.
    
      Attorney-General Manning and Assistant Attorney-General Nash for the State.
    
    
      ■I. Ií. Folger and Holton & Holton for defendant.
    
   Waleeb, J.

As to the motion for a nonsuit, the refusal of which is the basis of exceptions Nos. 1 and 4: ¥e must construe the evidence most favorably to the State, in passing upon such a motion, is the invariable rule of the law. Lynch v. Dewey, 175 N. C., 152. It is obvious from the above short recapitulation of the evidence that the defendant was the only person who had any motive for setting fire to this store and the goods. It also appears that he had an opportunity to set fire to them, when he returned to the store alone. It is obvious, also, from the use of kerosene oil, that the goods were purposely set fire to and not accidentally burned. This evidence was amply sufficient to carry the case to the jury upon the defendant’s guilt or innocence, and if his own testimony, and that of his wife, should be believed, or accepted as true, he did not set fire to the goods. The motion for a nonsuit, therefore, was properly denied, as there was raised a clear issue of fact, which the jury was properly required to pass upon. The jury did pass upon it, and as their verdict, they found him guilty. Prom the judgment thereon he appealed.

Exception 2: The defendant H. D. Edmonds began business in his own name on 8 August, 1919. The business, however, was incorporated 1 January, 1920, as the TI. D. Edmonds Clothing Company, with H. D. Edmonds manager of it. After the fire, the concern was forced into bankruptcy. The defendant was being cross-examined by the solicitor with reference to this bankruptcy, and with a view of impeaching him, when he asked him: “What went with all that stock of goods from 14 April until September?” The defendant objected, but the court admitted the answer for the purpose of impeaching the witness only. Witness’s answer was: “Well, I don’t know; couldn’t tell you exactly what went with it. All I got hold of (which was the company’s money), I deposited in the Farmers Bank and checked it out to pay my creditors.” This question was entirely proper in the cross-examination for the purpose of impeaching the witness.

Exception 3: B. A. Manion, clerk for the Edmonds Clothing Company, was being examined. It appeared that an extra policy of insurance amounting to $2,500 had been taken out on 15 March, 1920. Benbow Jones was the agent of the company which issued this policy. On Manion’s direct examination he was asked by defendant’s counsel: “What did the man who brought that policy there say about it?” The State objected, and the objection was sustained. Benbow Jones had not at that time been upon the stand, so this evidence was not admissible as corroborating him. It was simply a declaration by a third party, and no part of the res gestee. The defendant afterwards placed Benbow Jones on the stand, who testified fully in regard to this policy. This cured the error, if any.

Exception 5 was to a part of the judge’s charge in which he was stating a contention of the State. It is clearj we think, that in the state of the record this exception is not tenable. It was certainly founded upon evidence that appeared in the cause.

There was ample evidence from which the State might reasonably argue, and the jury find, that Edmonds was the last man in the store that night before the fire broke out, and there was no evidence that there had been any entrance into the building that night by any one, but Edmonds and his clerk, though there was evidence that Edmonds showed J. J. Gofer, and perhaps others, where some person trying to enter the store through the basement, had drawn the screws from the hinges of a door, through which one could go up from the store-room, which is in the basement, but the witness Gofer testified that you could not open the door by removing the hinges, because when the door was closed they were on the inside. Defendant told the witness Fred Lindsay, a traveling salesman who sold to him, that he had between $25,000 and $30,000 worth of goods in the store a short time before the fire. Lindsay was of the opinion, as he testified, that there was not more than between $5,000 and $10,000, and he would not give more than $5,000 for the goods if he were buying them. The policemen testified that the building was entirely closed at all doors and windows when they answered the alarm for fire, and reached the same, and that no one could enter it without breaking in, and there was no evidence of any breaking, or attempt to break in, if we omit the trivial circumstances as to the door in tbe basement, which may have been, and likely was, but a preparation by Edmonds himself for some apparently reasonable explanation that he even then thought would be necessary to allay suspicion which would certainly rest upon him. There are numerous other circumstances, more or less cogent and convincing as evidence, that Edmonds is the guilty perpetrator of this nefarious attempt to cheat and defraud the insurance companies, and thereby get money to pay his large indebtedness, defray expenses, and cover heavy impending losses, he evidently being very much embarrassed by pressing debts and liabilities at the time, and in his haste he did not stop to calculate the destruction of his own property, or that in which he was largely interested, and the consequent risk he was taking in burning all adjoining property and eventually starting a conflagration which would likely have imperiled the entire city of Winston, and involve it in an appalling catastrophe, which we cannot contemplate except with undisguised horror and the severest condemnation for the cold, calculating, and reckless commission of crime, fraught with such disastrous consequences, and which threatened to entail so much destruction and such untold losses on the community, and the proud and rejoicing city, then in the act of celebrating the greatest event of its history, and he cared not, if, as once said, “among its proud arches the fires of ruin glowed.” He took advantage of such an occasion to apply the torch to his own, and thus kindle the fires of destruction, in that beautiful and prosperous city, so that while others might suffer enormously, he could pay his debts and perhaps have something left. He looked upon the insurance money with a covetous and even avaricious eye. So great was the crime thus charged against the defendant, and so heinous, that we should be very careful to examine the evidence with the utmost scrutiny, but after doing so, we find that the proof of guilt is so strong and convincing, not to say conclusive, that it would be impossible to think, with seriousness, of dismissing the prosecution, which is asked to be done. The prisoner had the motive to commit the offense, because of the large stock of goods he pretended to have, and upon which, if they were destroyed by fire, he expected to realize handsomely. When told of the kerosene oil, he could not explain its presence, but dropped his head in token of his conscious guilt.

The prisoner was a large stockholder in the company, and had, therefore, a considerable interest in its general affairs, and especially in its stock of goods. His .motive in burning it is, therefore, apparent. Motive is not always necessary to be proved, but if often, as it is in this case, evidence of guilt, as it tends to §how the identity of the person who committed the crime.

Motive is not an indispensable, and not even an essential, element of this crime, but even when this is so, the existence of a motive may be evidence to show the degree of the crime or to establish the identity of the person as the culprit, S. v. Adams, 138 N. C., 688; S. v. Wilcox, 132 N. C., 1143; S. v. Adams, 136 N. C., 620, but it is bardly required to sbow any motive bere, as the other evidence of the prisoner’s guilt is so very conclusive.

Exception number three, as to tbe Manion insurance policy. Tbe evidence concerning this policy was insignificant, as compared with tbe other overwhelming proof, and may be left out of consideration without in tbe least impairing tbe strength of tbe other evidence against tbe prisoner.

Exception number five is also without any force or merit. It is tbe old and time-worn objection we so often meet with, and which is that tbe judge did not state the contentions correctly. If be did fail in this respect, be should have been requested to correct tbe error. Tbe traveling salesman, who sold goods often to tbe prisoner, testified that, while be stated that be bad $25,000 or $30,000 of insurance, be (tbe witness) did not think bis stock was worth more than “near $5,000,” a great disparity in tbe true value and tbe insurance.

There was clearly no error, and we must decline to change tbe judgment.

No error.  