State v. . Smith

33 S.E.2d 472, 225 N.C. 78, 1945 N.C. LEXIS 257

• Court: Supreme Court of North Carolina
• Decided: March 21, 1945
• Status: Published

Opinion

Winborne, J.

Tbe exceptive assignments brought forward and debated by defendant in brief on this appeal bave been examined and found to be without merit.

First: Tbe evidence as to exclamation of tbe witness Lula Stevens at tbe time tbe fire was discovered on tbe outside of tbe bouse where sbe bad just seen defendant is competent as a part of tbe res gestee. Tbe subject bas been fully discussed in many decisions of this Court, among which are these: S. v. Spivey, 151 N. C., 676, 65 S. E., 995; Batchelor v. R. R., 196 N. C., 84, 144 S. E., 542. See also 20 Am. Jur., 551, Evidence, sections 661, 662, and cases cited, and S. v. Lasecki (Ohio), 106 N. E., 660.

Second: Tbe testimony as to statement of defendant regarding bis wife is competent and relevant as tending to .show ill will towards tbe occupants of tbe bouse at tbe time of tbe fire, and a motive for tbe act. S. v. Millican, 158 N. C., 617, 74 S. E., 107; S. v. Thompson, 97 N. C., 496, 1 S. E., 921.

Third: Tbe portions of tbe charge to which exceptions are taken and pressed for error are statements of contentions of tbe State. As to these, an examination of tbe record on this appeal discloses evidence from which inferences might reasonably, logically and fairly be made as related by the court. And the record fails to show that any objection thereto was made by defendant at the time the court stated the contentions. Hence, objection thereto is waived. Mfg. Co. v. R. R., 222 N. C., 330, 23 S. E. (2d), 32; Ward v. R. R., 224 N. C., 696, 32 S. E. (2d), 221.

No error.