#### STATE v. C. B. BRODIE.

(Filed 25 November, 1925.)

1. Evidence — Witnesses—Opinions.

While a witness may testify to facts within his knowledge, he may also testify under the more modern rules to such as by reason of his personal observation he is in a position to know more accurately than the jury, who have not had such opportunity.

2. Fires — Evidence—Criminal Daw — Inventories.

Upon the trial for unlawfully setting fire to his stock of merchandise purchased a few months prior to the occurrence, the former owner, who had made an inventory for the purpose of sale, may testify as to the value of the stock of merchandise at the time.of the fire, when he has during the interval observed the merchandise in view of its depletion or replenishment, when relevant to the inquiry.

3. Same — Corroboration.

On trial for the setting fire to his stock of merchandise, which necessarily destroyed the stock of merchandise of another, testimony of such other person that the witness had been previously warned to take out insurance beforehand by the defendant is competent, and that of the wife in corroboration of what her husband told her, is also competent.

4. Same — Insurance-—Motive.

Upon the question of the motive of the defendant for setting fire to his stock of merchandise on trial under a criminal indictment, that he had padded his inventory for the purpose of .over-insurance, it is competent to show the inventory upon which he had bought it some few months before, with the other evidence in this case as to its value at the time of the fire.

5. Evidence — Character—Admissions—Appeal and Error,

As to the character of the defendant criminally charged with setting fire to his insured stock of merchandise, testimony of a witness that he had previously heard of defendant’s setting fire to his stock at other places, etc., will not be considered as prejudicial to defendant when he afterwards admits it as a witness in his own defense.

6. Instructions — Disagreement of Jury — Expression of Opinion — Statutes.

Where the jury in a criminal action have for several days failed to agree, an instruction by' the court that he presumed they realized the effect of a disagreement as to the cost to the county, etc., expressly stating he did not want to coerce them into an agreement, is not objectionable as expressing an opinion upon the evidence, or erroneous as against the provisions of our statute on the subject.

Appeal by defendant from McElroy, J., at April Term, 1925, of Stokes.

Tbe indictment charged tbe defendant with having set fire to and having burned the storehouse and other buildings of J. B. Woodruff, the *555storehouse having been occupied and used at the time by the defendant in carrying on a dry goods business and the other building having been occupied and used by one W. H. Yoight as a moving picture show. C. S., 4242.

"Woodruff was the owner of both these buildings, which were situated in Walnut Cove. He had conducted a mercantile business in the storehouse for sometime before 3 May, 1923, when he sold his stock of goods and rented the building to the defendant who immediately went into possession. The defendant continued the business there until the fire occurred. In September, 1923, he insured his stock of goods for $6,000; and at one o’clock in the night, 24 January, 1924, a fire broke out and destroyed the entire stock of goods and both buildings. At the trial a large number of witnesses were examined on each side and the jury found the defendant guilty as charged in the indictment. Judgment was pronounced and the defendant appealed. The material exceptions are noted in the opinion.

Attorney-General Brummitt and Assistant Attorney-General Nash for the State.

N. 0. Petree, George Jarvis and Swink, Clement & Hutchins for the defendant.

AdaMs, J.

The defendant first assigns as error the admission of Woodruff’s testimony as to what the stock of goods was worth on 1 January, 1924. The ground of the exception is the alleged expression of an opinion not formed by the witness upon a personal examination or observation of the goods. It is a familiar principle that one who is called to testify is usually restricted to facts within his knowledge; but if by reason of opportunities for observation he is in a position to judge of the facts more accurately than those who have not had such opportunities, his testimony will not be excluded on the ground that it is a mere expression of opinion. McKelvey on Evidence, 172, 231; Greensboro v. Garrison, post, 577; Hill v. R. R., 186 N. C., 475; Shepherd v. Sellers, 182 N. C., 701; Marshall v. Telephone Co., 181 N. C., 292.

In assuming that Woodruff’s estimate of value was not the result of his personal observation, the defendant is in error. Having made his last inventory about four months before the sale, Woodruff testified that he had gone to the store several times since the sale to see whether the defendant was keeping up the stock of goods and that he had examined it only a few hours before the fire broke out. His “judgment” as to the value of the goods was formed after a personal inspection of the stock on hand. The first exception, then, is without merit.

*556Voight’s testimony tbat be bad carried no insurance (sixth exception) was competent as tending to explain tbe defendant’s request tbat Yoigbt should take out a policy before tbe first of tbe year and tbat be bad given Yoigbt tbe last warning; and what Mrs. Yoigbt said (seventh exception) was evidently admitted in corroboration of her husband. In S. v. Bethea, 186 N. C., 22, it is said tbat after tbe credibility of a witness has been impugned by cross-examination it is permissible to corroborate and support bis credibility by evidence tending to restore confidence in bis veracity and in tbe truth of bis testimony. Yoigbt bad been subjected to cross-examination and bis wife’s testimony referred to circumstances concerning which be bad previously testified. Such corroborating evidence may include previous statements, whether'near or remote, and whether made pending tbe controversy or ante litem motam. These exceptions must therefore be overruled. Dellinger v. Building Co., 187 N. C., 845; S. v. Krout, 183 N. C., 804; S. v. Exum, 138 N. C., 600; S. v. George, 30 N. C., 324.

Woodruff sold bis stock of goods to tbe defendant on 3 May, 1923. He bad taken an inventory on tbe first day of tbe preceding January; and tbe defendant made a similar inventory on 14 May, 1923. Tbe State contended tbat by sales and by tbe removal of goods from tbe storehouse tbe defendant bad reduced tbe value of bis stock very much below tbe amount of bis insurance; and it offered Woodruff’s inventory, which was admitted, not as substantive, but as corroborative evidence. To tbe admission of this evidence tbe defendant entered exceptions 8, 9, 10, 11. It will be noted tbat tbe defendant exhibited bis inventory to tbe insurance agent at tbe time tbe policy was issued; tbat a comparison of tbe two iüventories, item by item, tended to show tbat tbe defendant bad padded bis; and tbat tbe vaue of tbe destroyed goods was far below tbe face of tbe policy. Granted this theory, we do not perceive any valid reason for tbe exclusion of this evidence or tbat which is tbe subject of tbe seventh, twelfth, thirteenth, fourteenth and fifteenth exceptions.

J. M. Stultz, a witness for tbe defense, testified tbat be knew tbe defendant and bis wife and tbat her character was good. On cross-examination be was asked whether “tbe defendant bad tbe reputation of having bad several fires while living in Yirginia?” and answered, “I think be bad some fires. At least I beard of it. I did not know it to be a fact.” Again: Question: “I ask you if tbe defendant bad tbe general reputation of having bad three fires in 1910 and 1911 and collecting insurance on them ?” Answer: “I do not know. I beard about tbe fires but do not know about tbe insurance.” To tbe admission of this testimony tbe defendant noted exceptions twenty and twenty-one.

Inquiry into tbe law concerning such impeaching evidence and tbe distinctions drawn in several of our decisions in reference thereto is- not *557necessary'to a disposition of these exceptions. "With respect to the question the following cases may be consulted: Barton v. Morphes, 13 N. C., 520; S. v. Johnston, 82 N. C., 589; S. v. Garland, 95 N. C., 671; S. v. Bullard, 100 N. C., 486; S. v. Arnold, 146 N. C., 602; S. v. Holly, 155 N. C., 485; S. v. Cathey, 170 N. C., 794; S. v. Killian, 173 N. C., 792; S. v. Neville, 175 N. C., 731; S. v. Canup, 180 N. C., 739; S. v. Baldwin, 184 N. C., 789.

It is important to observe that Stultz did not testify be knew the defendant’s general reputation in regard to the fires; on the contrary be expressly denied all knowledge of sucb reputation. If there was error in permitting the witness to state what be bad beard in regard to the fires, the error was cured by the following admission of the defendant, who subsequently testified in bis own behalf: “Brodie Brothers Company owned stock in Virginia and bad three fires. Collected insurance on two of them. E. E. Brodie is my wife. We have been married 23 years. I do not remember whether I bad any insurance'taken out in her name or not. The policy might have been. It could have been in Brodie Brothers Company. I do not remember whether both policies were taken out in Brodie Brothers Company’s name or not. I do not remember in what name I collected the insurance. We collected a part of it., nothing like the face of the policy. ■ The one taken out in E. E. Brodie’s name, I think, we collected $2,200 on. I am not positive about that. The building was owned by us and also the place was owned by us.” The defendant admitted all that Stultz said and more.

For three days the jury had been unable to agree on a verdict and on Saturday morning came into the courtroom and announced that they could not agree. They were requested to give the case further consideration and were afterwards recalled. Not having agreed they were given this instruction: “I presume you gentlemen realize what a disagreement means. It means that four more days of the time of the court will have to be taken up at the expense of several hundred dollars. I do not want to force or coerce you into an agreement and could not if I wished to do so, but still it is your duty as intelligent, reasonable men to consider the evidence, reconcile it, reason the matter over among you and come to an agreement. A mistrial is always a misfortune to any case or to any county. Jurors, if they cannot render verdicts, are entirely useless. It is the duty of jurors to agree if possible and I hope you gentlemen can retire and consider the matter further, reason with each other as intelligent men and come to an agreement.” The defendant excepted.

In S. v. Windley, 178 N. C., 670, a new trial was granted because the judge had intimated an opinion as to the weight of the evidence, when the jury had not agreed, Walicer J., saying: “The judge, in this case, did not enter the verdict and ask if any of the jurors disagreed to it, *558as was done in S. v. Shule, supra, but tbe jurors were, in effect, polled and asked if eacb of tbem believed tbe testimony of tbe defendant, and if so, to bold up bis right band. Tbis was done after a statement by tbe court of wbat tbe defendant, as a witness in bis own bebalf, bas said, and tbe further remark tbat be bad proved bimself to be a man of good character. Tbe court then instructed tbe jury, tbat having all of tbem said tbat they believed tbe statement of defendant, be bad told tbem before, and would tell tbem now, tbat it is their duty, as jurors, to take tbe law from tbe court, and if they believe defendant’s testimony, and found tbe facts which it tends to show, to convict him. There are other expressions of like kind, though somewhat more intensive in form and emphasis.” To tbe same effect is S. v. Simmons, 143 N. C., 613. These two cases are in a class which fairly represent tbe principle on which tbe defendant relies; and if tbe principle were applicable here a new trial would be necessary. But in tbe instruction complained of there is no intimation of an opinion either as to tbe weight of tbe evidence or as to tbe guilt or innocence of tbe defendant. His Honor told tbe jury tbat a mistrial would be unfortunate, but be was very careful to say, while be hoped they would come to an agreement, be bad no desire to force or coerce a verdict. In doing so be exercised tbe prerogative of a judicial officer, and in bis instruction there is nothing which warrants a new trial. Bailey v. Poole, 35 N. C., 404, 407; S. v. Robertson, 121 N. C., 551, 554; S. v. Southerland, 178 N. C., 676, 678.

Tbe remaining exceptions require no discussion. We find

No error.