#### STATE v. JUNE WILSON.

(Filed 1 November, 1933.)

1. Arson O c — Evidence of defendant’s guilt of wantonly and wilfully burning barn held sufficient.

In this prosecution for wilfully and wantonly burning a barn in violation of O. S., 4242, the evidence of the felonious origin of the fire and of the identity of the defendant as the culprit is held sufficient to be submitted to the jury, the corpus delicti being reasonably inferable from the circumstances, and there being evidence that a fresh boot track found at the scene of the crime was made by defendant’s boot, and that defendant failed to answer charges of his brother, made in the presence of officers, under circumstances calling for a reply, that defendant had committed the crime.

2. Criminal Law G f — Failure of defendant to answer accusations under circumstances of this case held competent as implied admission.

In this prosecution for wantonly and wilfully burning a barn, defendant’s brother, in the presence of the officers, after looking at defendant’s boot track found at the scene of the crime, charged defendant with having burned the barn, to which defendant made no reply: Held, the accusation was made under circumstances calling for a reply by defendant, and was competent evidence of defendant’s guilt.

3. Same — TJndenied accusation is incompetent unless made under circumstances naturally calling for denial from defendant.

In order for a defendant’s failure to answer an accusation of committing a crime or complicity therein to be competent in evidence against him in a prosecution for such crime, it must be shown that defendant heard .and understood the accusation, and that it was made under circumstances naturally calling for an answer, and that defendant had opportunity to act or speak, and defendant’s silence must amount to an admission by acquiescence.

4. Same — It is not essential that person making accusation be competent as witness in order for undenied accusation to be competent.

It is not essential that the person accusing another of the commission of or complicity in a crime should be competent to testify against defendant in order for the undenied accusation to be competent against defendant where the circumstances are such as to naturally call for a denial by defendant, though the incompetence of the accuser as a witness may be a circumstance to be considered.

5. Ci’iminal Law L e — Admission of testimony of undenied accusation of three-year-old girl held not prejudicial.

Defendant, having been accused by his brother of burning prosecuting witness’s barn, under circumstances naturally calling for a denial, went to the home of the prosecuting witness and sought to engage him in conversation concerning the fire. While defendant and prosecuting witness were talking the prosecuting witness’s three-year-old granddaughter made an accusation implicating defendant as the culprit. Defendant did not *377deny the accusation and leit shortly thereafter. Held, the admission in evidence of the undenied accusation of the three-year-old girl was not prejudicial to defendant, it being merely cumulative of the competent undenied accusation of defendant's brother, and the jury having a full understanding of the circumstances under which the accusation was made, and being able to judge whether defendant’s silence and abrupt departure were due to his inhospitable reception and the irresponsibility of his accuser. Whether the competency of an undenied accusation is exclusively a question of law for the Court, quiere?

Appeal bj defendant from Warlich, J., at July Term, 1933, of Bubxe.

Criminal prosecution tried upon indictment charging the defendant with wantonly and wilfully burning- a barn, the property of W. A. Low-man, in violation of C. S., 4242.

W. A. Lowman is a farmer living in Burke County. His barn was burned about 1:00 a.m. Sunday morning, 9 April, 1933. His horses were saved, but his cow was not. The defendant is a fisherman living in a shack on the western bank of the Catawba Eiver.

A fresh boot track was found not far from the barn which led across the bottom and in the direction of June 'Wilson’s shack. It is in evidence that this track was made by the defendant’s boots. The defendant thought the track might have been made on Saturday afternoon as he was going after some liquor. He said to one of his neighbors between 2:00 and 3:00 o’clock Sunday morning, “I played hell up the creek tonight.” And when the officers came to his house, or shack, later in the morning and said to him that Mr. Bowman’s barn was burned last night, “he did not make any answer to that, but said they played hell with my fish trap last night.” Bob Wilson, brother of the defendant, who was with the officers and neighbors, after looking at the boots, said to the defendant: “You are the fellow that burned Mr. Bowman’s barn.” To this, the defendant made no reply.

On the following day the defendant stopped by the home of W. A. .Lowman, sat down on the edge of the porch, and sought to engage him in a conversation with respect to the cost of his new harness, etc. Low-man had very little to say; did not answer his questions. Presently, Bowman’s little three-year-old grandchild said to the defendant: “You burned our cow.” The defendant made no' answer, but pretty soon thereafter he got up and left. Objection by defendant to the introduction of this evidence; overruled; exception.

The defendant offered no evidence, but moved to dismiss the prosecution as in case of nonsuit. 0. S., 4643.

Yerdict: Guilty.

Judgment: Thirty months on the roads.

The defendant appeals, assigning errors.

*378 Attorney-General Brummiit and Assistant Attorney-General Seawell for the State.

D. L. Russell for defendant.

Stacy, C. J.

The defendant grounds bis motion for dismissal of the prosecution on the insufficiency of the evidence to show any felonious origin of the fire, or to identify the defendant as the culprit, citing S. v. Church, 202 N. C., 692, 163 S. E., 874, but we think these facts, or the corpus delicti, may reasonably be inferred from the attendant circumstances. Not only does it appear that the defendant made the tracks found near the barn, but also that he remained silent in the face of the statement by his brother, in the presence of the officers, “You are the fellow that burned Bowman’s barn.” S. v. Jackson, 150 N. C., 831, 64 S. E., 376. The occasion was such as to call for a reply, or to render the defendant’s silence at that time tantamount to an admission by acquiescence of the truthfulness of said statement. S. v. Burno and Portee, 200 N. C., 142, 156 S. E., 783.

The general rule is, that statements made to or in the presence and hearing of a person, accusing him of the commission of or complicity in a crime, are, when not denied, admissible in evidence against him as warranting an inference of the truth of such statements. 1 R. C. L., 479.

It is the occasion, colored by some circumstance or significant conduct on the part of the accused, which renders such statements, otherwise incompetent as hearsay, admissible in evidence. S. v .Evans, 189 N. C., 233, 126 S. E., 607.

Indeed, it has been said that the acquiescence of a party, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party, and whether it be acquiescence in the conduct or in the language of others, it must plainly appear that such conduct was fully known, or such language fully understood by the party, before any inference can be drawn from his passiveness or silence. The circumstances, too, must not only be such as afford him an opportunity to act or speak, but such also as would properly and naturally call for some action or reply, from men similarly situated. Taylor on Evidence, sec. 733.

When a statement is made, either to a person or within his hearing, implicating him in the commission of a crime, to which he makes no reply, the natural inference is that the imputation is perhaps well founded, or he would have repelled it. S. v. Suggs, 89 N. C., 527. But the occasion must be such as to call for a reply. “It is not sufficient that the statement was made in the presence of the defendant against whom it is sought to be used, even though he remained silent; but it is *379further necessary that the circumstances should have been such as to call for a denial on his part, and to afford him an opportunity to make it.” 16 C. J., 659.

Silence alone, in the face or hearing of an accusation, is not what makes it evidence of probative value, but the occasion, colored by the conduct of the accused or some circumstance in connection with the charge, is what gives the statement evidentiary weight. S. v. Burton, 94 N. C., 947; S. v. Bowman, 80 N. C., 432. “To make the statements of others evidence against one on the ground of his implied admission of their truth by silent acquiescence, they must be made on an occasion when a reply from him might be properly expected. But where the occasion is such that a person is not called upon or expected to speak, no statements made in his presence can be used against him on the ground of his presumed assent from his silence.” Ashe, J., in Guy v. Manuel, 89 N. C., 83.

Due to the manifold temperaments of people and their varying conceptions of the fitness of things, the character of evidence we are now considering is so liable to misinterpretation and abuse that the authorities uniformly consider it as evidence to be received with great caution and, except under well recognized conditions, hold it to be inadmissible altogether. Hence, unless the party at the time was afforded a fair opportunity to speak, or the statements were made under circumstances and by such a person as naturally called for a reply, the evidence is not admissible at all. S. v. Jackson, 150 N. C., 831, 64 S. E., 376. “The silence of the accused may spring from such a variety of motives, some of which may be consistent with innocence, that silence alone is very slight evidence of guilt; and, aside from the inference which may arise from the attendant circumstances, should be received with caution as proof of guilt.” Underhill Crim. Ev. (3d ed.), sec. 209. It is readily conceded that “mere shadows of confessions,” which arise from silence in the face of accusations, are not to be received in evidence unless they amount to admissions by acquiescence. S. v. Buller, 185 N. C., 625, 115 S. E., 889. Qui tacel non utique fatetur, sed tomen verum est eum non negare. “He who is silent does not indeed confess, but yet it is true that he does not deny.”

Speaking to the subject in Vail v. Strong, 10 Vt., 457, Phelps, J., delivering the opinion of the Court, says:

> “It is sometimes said that, if a fact, which makes against the party, is stated in his presence, and is not contradicted by him, his silence raises a presumption of its truth. To this position we cannot accede. The mere silence of the party creates no evidence, one way or the other. There are, indeed cases, where the silence of the party creates a presumption or inference against him; but this presumption derives all its *380force from tbe circumstances, under wbicb tbe statement is made, wbicb may call for a denial. If tbe party is under a moral or honorary obligation to disclose, or if bis reputation or interest is jeoparded by tbe statement, be bas a strong inducement to deny it, if be can do so with truth. His silence, under such circumstances, affords an inference against him, wbicb is more or less strong, in proportion to tbe inducement to make tbe denial. But even here, tbe evidence, thus created, rests altogether upon tbe attendant circumstances. If, for instance, tbe party be engaged in defending bis reputation or bis rights, an assertion, bearing upon tbe subject under discussion, and unfavorable to him, calls for a denial, and if there be not a denial, a presumption of its truth arises. But we know of no obligation upon tbe party to answer every idle or impertinent inquiry. He bas tbe right to be silent, unless there be good occasion for speaking. We cannot admit that be is bound to disclose bis private affairs, at tbe suggestion of idle curiosity, whenever such curiosity is indulged, at tbe hazard of being concluded by every suggestion, wbicb may be suffered to pass unanswered. Tbe true rule we understand to be this; — evidence of this character may be permitted to gO' to tbe jury, whenever tbe occasion, upon wbicb tbe declaration is made in tbe presence of tbe party, and tbe attendant circumstances, eall for serious admission or denial on bis part; but tbe strength of tbe evidence depends altogether upon tbe force of tbe circumstances and tbe motives, wbicb must impel him to an explicit denial, if tbe statement be untrue. But if no good reason exist to call for disclosure, and tbe party decline to enter into useless discussion, or answer idle curiosity, no legitimate inference to bis prejudice can be drawn from bis silence.”

Nor is it essential, though a circumstance to be considered perhaps, that tbe statements of complicity or accusation should be made by one competent to testify against tbe defendant. S. v. Record, 151 N. C., 695, 65 S. E., 1010; S. v. Graham, 194 N. C., 459, 140 S. E., 26; S. v. McKinney, 175 N. C., 784, 95 S. E., 162; S. v. Randall, 170 N. C., 757, 87 S. E., 227; S. v. Freeman, 197 N. C., 376, 148 S. E., 450; 1 R. C. L., 480.

If it be conceded as more probable, from tbe foregoing epitome of tbe decisions on tbe subject, that tbe remark of tbe little child, “You burned our cow,” made on Monday after tbe fire when tbe defendant stopped at tbe borne of W. A. Bowman and sought to engage him in a conversation, called for no reply on tbe part of tbe defendant, its admission would seem to be without material significance on tbe facts of tbe present record. Tbe occasion is what gave it point, if it bad any. Tbe jury would not have attached any importance to tbe child’s statement, nor tbe defendant’s failure to notice it, but for tbe fact that be went to tbe borne of tbe prosecuting witness and sought to engage him in conversa*381tion when be knew tbat be was then being accused of burning- Lowman’s barn, and be got up and left pretty soon after tbe child’s remark. On tbe other band, it is urged tbat tbe defendant’s silence, as well as his conduct, on this occasion was' but natural in view of tbe inhospitable reception accorded him by tbe prosecuting witness. So tbe jury, at least, bad tbe benefit of a full understanding of tbe situation.

Tbe weight of tbe circumstance, if any it bad, lies in tbe conduct of tbe defendant, and not per se in tbe remark of tbe little child. At any rate, this evidence was only cumulative, tbe same implication having been made by tbe defendant’s brother on tbe day previous under circumstances which clearly called for a reply but which elicited no answer, and we are not disposed to regard its admission as harmful, even if its exclusion might have been more appropriate. Then, too, tbe defendant’s silence on this occasion was readily susceptible to explanation, which be elected not to make, evidently regarding tbe matter of small moment. 2 Wigmore on Evidence (2d ed.), 555.

Speaking generally to a somewhat similar situation in S. v. Bowman, 80 N. C., 432, Ashe, J., delivering tbe opinion of tbe Court, seems to have taken a middle course, as it were, and approved tbe trial court’s submission of tbe matter to tbe jury :

“Tbe prisoner excepted to tbe admission of tbe declarations of Eliza Jane Bowman, tbe daughter of tbe prisoner, in reference to tbe ‘last words’ of her mother, tbe deceased. They were clearly admissible for tbe purpose for which they were proved, and tbe remarks of bis Honor in commenting upon this testimony before tbe jury were perfectly legitimate. They were told it was for them to determine whether tbe declaration was made in tbe bearing of tbe prisoner, whether be beard and understood tbe statement, and if so, what was bis conduct on tbe occasion; did be immediately take up tbe child and bear her away in bis arms and keep her constantly in bis immediate presence while tbe company remained; and if they believed bis testimony, it was for them alone to say what value was to be attached to these circumstances as tending to prove tbe prisoner’s guilt. S. v. Perkins, 3 Hawks, 377.”

This view of the law has been followed in a number of later cases. S. v. Martin, 182 N. C., 846, 109 S. E., 74; S. v. Walton, 172 N. C., 931, 90 S. E., 518; S. v. Burno and Portee, supra. But in S. v. Butler, supra, tbe competency of such proposed evidence was ruled as a matter of law for tbe court, opinion by Walker, J.

We find no error in tbe court’s refusal to set aside tbe verdict for alleged misconduct of one or more of tbe jurors. Tbe verdict and judgment will be upheld.

No error.