#### STATE v. BOOKER T. ANDERSON.

(Filed 7 April, 1948.)

1. Criminal Daw § 27: Evidence § 2—

The courts will take judicial notice of the day of the week on which a particular date falls, the dates of the terms of the Superior Courts, and of the judges of the Superior Court. G. S., 7-50; G. S., 7-70.

2. Judges § 2c—

The recitation of an erroneous date in the concluding part of a commission to an emergency judge to hold a term of court will not invalidate the commission when it is manifestly a clerical error without tendency to mislead when the commission is construed in its entirety in the light of the dates for the commencement of the terms of court. Constitution of N. O.. Art. IV. sec. 11: G. S.. 7-50.

*721 3. Jury § 9—

A written order entitled as of tlie action, commanding- the sheriff to summon a special venire of twenty-five freeholders from the body of the county to appear on a specified date to act as jurors in the case, is in substance a special writ of venire facias.

4. Same—

An order for a special venire properly specifies that the veniremen are ■ to be freeholders. G-. S., 9-11; 6. S., 9-16; G. S., 15-165.

5. Same—

The failure of the trial judge to sign the order for a special venire does not alone invalidate the special venire, it having been ordered and sum- » moned in all other respects in conformity with statute. G-. S., 9-29.

6. Jury § 4%—

Objection to a special venire is waived by failure to challenge the array until after trial and judgment.

7. Sam©—

■ Objection to individual jurors is waived by failure of challenge' co the polls and failure to exhaust peremptory challenges.

8. Arson § 7—

Evidence tending- to show that a dwelling house was willfully and maliciously burned by the criminal agency of some responsible person and that such person was the defendant, is sufficient to overrule nonsuit in a prosecution for arson.

9. Homicide § 25—

Evidence tending to show that defendant perpetrated or attempted to perpetrate the crime of arson upon a dwelling house and thereby proximately caused the deaths of the occupants, is sufficient to be submitted to the jury on the charge of murder in the first degree. G. S., 14-17.

10. Criminal Law § 81c (8)—

Exception to the admission of evidence cannot be sustained when evidence to the same effect is admitted without objection.

11. Criminal Law § 53f—

The fact that the court necessarily consumes more time in stating the contentions of the State because of the greater volume of the State’s testimony is not ground for exception, it being incumbent upon defendant to call the court’s attention at the time to any asserted failure to fully and accurately state his contentions or if he desires any amplification thereof.

12. Criminal Law § 78e (1) —

An exception to the charge “as a whole” is unavailing as an unpointed exception.

IS. Arson § 8: Homicide § 29—

Upon verdict of guilty of arson, G. S., 14-58, there being no recommendation by the jury in respect to the punishment, and verdict of guilty of murder in the first degree, G. S., 14-17, sentence of death is mandatory.

*722Appeal by prisoner, Booker T. Anderson, from 'Grady, Emergency Judge, and a jury, at tbe August Term, 1947, of Pitt.

Tbe August Term of tbe Superior Court of Pitt County opened on Monday, 25 August, 1947. Honorable Henry A. Grady, an Emergency Judge, presided over tbe term under a commission directed to bim by tbe Governor, reciting tbat it bad been made to appear to tbe Governor tbat good and sufficient reasons existed wby Honorable W. C. Harris, tbe Judge assigned thereto under Article IY, Section 11, of tbe State Constitution, was unable to bold tbe regular term of tbe Superior Court of Pitt County “beginning August 25tb, 1947,” and commissioning Judge Grady “to bold said term of said Court for tbe County aforesaid, beginning on Monday, tbe 25tb day of July, 1947, and continue one week, ór until tbe business is disposed of.”

Separate counts of tbe indictment charged tbe prisoner with tbe commission of tbe following four capital felonies, namely: (1) Tbe willful and malicious burning of tbe dwelling bouse of Willie Belle Cratch, Bobbie Eugene Cratch, and Jessie Cratch; (2) tbe murder of Willie Belle Cratch; (3) tbe murder of Bobbie Eugene Cratch; and (4) tbe murder of Jessie Cratch.

Upon bis arraignment, tbe prisoner pleaded not guilty to all matters charged against bim. Thereupon tbe judge, acting upon tbe joint recommendation of tbe solicitor and counsel for tbe defense, made an order in this cause in open court in tbe presence of tbe prisoner, commanding tbe sheriff to summon a special venire of twenty-five freeholders from tbe body of Pitt County to appear before tbe court “on Wednesday morning, August 27, 1947, at 9 :30 A. M. to serve as jurors in this cause.” Tbe order was not signed by tbe judge, but it was reduced to writing, entered on tbe minutes, and issued to tbe sheriff by bis direction. The sheriff executed tbe order and returned it to tbe clerk of tbe court on tbe day when it was returnable, with tbe names of tbe twenty-five special veniremen summoned by bim. Tbe petit jury was chosen in part from tbe original panel drawn by tbe board of county, commissioners before tbe term, and in part from tbe special venire summoned by tbe sheriff under tbe order of tbe judge. 'Tbe prisoner did not object in any way before judgment to tbe validity of tbe order for tbe special venire, or to tbe mode in which it was summoned. Tbe record does not indicate tbat tbe prisoner was compelled to accept any petit juror over bis objection, or tbat tbe peremptory challenges allowed bim by statute were exhausted when tbe jury was completed.

Tbe testimony adduced by tbe State at tbe trial tended to show tbe circumstances hereafter set out. Willie Belle Cratch, a young widow, regularly resided in a dwelling bouse on Cotancbe Street in Greenville with her mother, Annie Belle Spain, her six-year-old son,' Bobbie Eugene Cratch, and her oneryear-old daughter, Jessie Cratch. Shortly before *723eleven o’clock on tbe nigbt of 15 May, 1947, Willie Belle Oratcb and tbe two children went to sleep in tbe same bed in tbeir bedroom in tbis residence. After tbeir retirement, Annie Belle Spain visited a neighbor about half an hour. As she was returning home, she saw tbe dwelling bouse “afire,” smelled rags burning, and turned in tbe alarm.

After fire fighters thus called .to tbe scene bad subdued tbe flames, tbe bouse was entered, and it was ascertained that both of tbe children bad been “burned very badly” and were already dead. 'The body of Jessie Cratch was on tbe bed, and that of Bobbie Eugene Cratch was on tbe floor beside tbe bed. Willie Belle Cratch lay in an unconscious state upon tbe floor some eight feet away. She was burned from bead to feet, and died early tbe next morning.

Tbe fire bad been virtually confined to tbe bedroom occupied by tbe decedents. Tbe floor of tbis room was “very much charred,” and tbe door between it and tbe adjoining hallway was also “badly charred.” Other parts of tbe room “were scorched by tbe radiation of beat.” Tbe fire bad been “worse around tbe bed” and a nearby closet. Tbe bed was “charred mighty bad,” and one of its side rails “bad been burned in two.” Annie Belle Spain owned a white enameled dish pan which was habitually kept on tbe back porch of tbe dwelling. After tbe fire, tbis pan was discovered at tbe bed “exactly where tbe side rail bad burned in two.” Tbe pan was “burned black inside” and “bad a kerosene smell to it.” Tbe police found a glass jar containing some kerosene oil in tbe hallway just outside tbe bedroom' of tbe decedents. Tbis jar did not belong to any of tbe occupants of tbe bouse and bad not been seen upon the premises before tbe fire.

Tbe prisoner lived “on Douglas Avenue, about a mile from tbe bouse that was burned.” Some three or four hours prior to tbe fire, be rode to tbe immediate neighborhood of tbe dwelling of tbe decedents in a taxi. At that time, be was carrying a “wrapped-up package.” After tbe fire alarm sounded, tbe prisoner was observed about a half mile distant from the burning bouse on Cotancbe Street, -running towards his home on Douglas Avenue.

The prisoner bad been keeping company with Willie Belle Cratch before these events, but Annie Belle Spain bad objected, to tbe association and bad forbidden him to call upon her daughter. Soon after tbe fire, tbe prisoner was taken into custody as a suspect. He first denied that be bad bad anything to do with tbe burning, but be subsequently confessed that be bad set tbe dwelling on fire with intent thereby to destroy tbe bouse. He stated, however, that be bad no purpose to barm any of tbe decedents, and bad no knowledge that any persons were inside tbe bouse when be started tbe fire by throwing a lighted match into a pan containing kerosene oil setting under tbe bead of tbe bed. Accord*724ing to the State’s witness, J. R. Tanner, chief of police of Greenville, the prisoner explained his motive for setting the fire as follows: “He said the reason he did it was he had a place fixed on Douglas Avenue to move Willie Belle Cratch and her children to, but that he could not make any headway because of her mother, Annie Belle Spain; . . . that he was just trying to put Willie Belle Cratch on the street so that she would have to come and live with him, and that if he could have only gotten rid of Annie Belle Spain this would not have happened.”

After the prisoner had made his confession, he was escorted to the premises by the police, and there re-enacted his version of the setting of the fire.

The prisoner offered testimony at the trial tending to show that he had no connection with ,the burning of the house, and that he did not make any admissions or confessions to that effect.

The petit jury, however, did not accept the evidence presented in behalf of the prisoner because it returned a verdict finding the prisoner “guilty of arson and murder in the first degree.” The jury made no recommendation -with respect to the punishment on the conviction for arson. Sentence of death was pronounced against the prisoner, and he thereupon appealed to this Court, relying upon the exceptions hereafter considered.

Attorney-General McMullan and Assistant Attomeys-General Bruton, Rhodes, and Moody for the State.

J. II. Harrell' for the prisoner., appellant.

EeviN, J.

Subsequent to the passing of the death sentence, the prisoner: challenged the validity of his trial for two reasons not theretofore advanced by him. He then asserted for the first time that the court was “illegally constituted and without authority to try and sentence him at the term beginning August 25, 1947, as the commission of the Governor commissioned Judge Henry A. Grady to hold a term of court in Pitt County beginning on Monday, the 25th day of July, 1947,” and that the members of the petit jury “who were of the special venire were illegally summoned and, therefore not duly constituted jurors as no order was signed and issued by the trial judge to the sheriff of Pitt County to summon the special venire.”

This Court judicially knows these things : (1) That 25 July, 1947, fell on Friday and not on Monday, 31 C. J. S., Evidence, section 100; (2) that no regular term of the Superior Court of Pitt County was scheduled to begin on 25 July, 1947, or on any other day during such month, G. S., 7-70; (3) that a regular term of the Superior Court of Pitt Coiinty was appointed by law to begin on Monday, 25 August, 1947, and to continue *725for one week for tbe trial of criminal and civil cases, G. S., 7-70; Corbin v. Berry, 83 N. C., 28; 31 C. J. S., Evidence, section 47; (4) tbat Honorable W. C. Harris, tbe Judge of tbe Sevéntb Judicial District, was assigned to bold sucb term of tbe Superior Court of Pitt County under Article IY, Section 11, of tbe State Constitution, Corbin v. Berry, supra; (5) tbat Honorable Henry A. Grady was an Emergency Judge of tbe Superior Court at tbe times in question. Reid v. Reid, 199 N. C., 740, 155 S. E., 719; Bohannon v. Trust Co., 198 N. C., 702, 153 S. E., 263. When tbe commission of tbe Governor is read and construed in its entirety in tbe light of these matters, it becomes indisputably manifest tbat tbe Governor thereby commissioned Judge Grady to bold tbe term of tbe Superior Court of Pitt County convening on Monday, 25 August, 1947, and tbat tbe recited date “July 25, 1947,” in tbe concluding part of tbe commission constituted a mere clerical error without tendency to mislead. Consequently, we overrule tbe challenge to tbe authority- of Judge Grady to bold tbe court at which tbe prisoner was tried, convicted, and sentenced. See N. C. Const., Art. IV, Section 11; G. S., 7-50.

Tbe written order made out by tbe court and placed in tbe bands of tbe sheriff for execution was entitled as of this action, and commanded tbe sheriff to summon a special venire of twenty-five freeholders from tbe body of Pitt County to appear before tbe court on a specified day to act as jurors in this particular case. Clearly it was, in substance, a special writ of venire facias. Durrah v. State, 44 Miss., 789, 796; Waterbury v. Miller, 13 Ind. App., 197, 41 N. E., 383; Thurman v. Commonwealth, 107 Va., 912, 60 S. E., 99. As tbe special venire was not to be drawn from tbe box, tbe order properly specified tbat tbe venirejnen were to be freeholders. G. S., 9-11; G. S., 9-16; G. S., 15-165; S. v. Lord, 225 N. C., 354, 34 S. E. (2d), 206. The record discloses that tbe sheriff executed tbe order and returned it to tbe clerk of tbe court on the day when it was returnable, with tbe names of tbe twenty-five freeholders summoned by him. It, therefore, appears tbat the special venire was ordered and summoned in substantial compliance with tbe relevant statute. G. S., 9-29. See, also, S. v. Parker, 132 N. C., 1014, 43 S. E., 830. As there is nothing in tbe record indicating tbat sucb omission adversely affected in any degree tbe inherent right of tbe prisoner to a trial by a fair and impartial jury, we are constrained to bold tbat tbe failure of tbe trial judge to sign tbe order was at most an irregularity which did not invalidate tbe special venire.

Moreover, tbe prisoner’s objection to tbe jurors is unavailing for tbe additional reasons tbat it was not raised in apt time or in tbe appointed way. It is to be noted that tbe ground of bis objection to tbe petit jurors “who were of tbe special venire” was apparent to tbe prisoner on tbe face of tbe record before tbe court embarked upon tbe task of selecting a trial jury, and tbe prisoner did not assert tbat such jurors were dis*726qualified until after be bad been convicted and sentenced to death. He waived any right to question the competency of the special venire as a whole by proceeding to trial without interposing a challenge to the array. S. v. Douglass, 63 N. C., 500; S. v. Kirksey, 227 N. C., 445, 42 S. E. (2d), 613. He did not object to the jurors in question as individuals by challenges to the polls. S. v. Kirksey, supra; S. v. Koritz, 227 N. C., 552, 43 S. E. (2d), 77. Besides, the petit jury was obtained from the original panel and the special venire without the peremptory challenges allowed the prisoner by statute being exhausted. S. v. Bregden, 111 N. C., 656, 16 S. E., 170.

The prisoner challenged the sufficiency of the State’s evidence to sustain convictions for arson and murder by motions for judgment of nonsuit, and reserved exceptions to adverse rulings on these motions.

Obviously, the testimony offered by the State was sufficient to justify the eonchisions that the dwelling house of Willie Belle Cratch, Bobbie Eugene Cratch, and Jessie Cratch was willfully and maliciously burned by the criminal agency of some responsible person, and that such person was the prisoner. It follows that the court properly submitted to the jury the question of the prisoner’s guilt upon the first count in the indictment charging arson. S. v. Laughlin, 53 N. C., 455; S. v. Porter, 90 N. C., 719; S. v. McCarter, 98 N. C., 637, 4 S. E., 553. Furthermore, it is plain that the evidence adduced by the State was ample to warrant a finding that the' prisoner perpetrated or attempted to perpetrate the crime of arson upon the dwelling house of Willie Belle Cratch, Bobbie Eugene Cratch, and Jessie Cratch, and thereby proximately caused their deaths. It thus appears that the court was required to leave to’ the jury the questions of whether the prisoner was guilty of murder in the first degree as charged ún the second, third, and fourth counts. Gf. S., 14-17.

The testimony of the State’s witnesses, George Gardner and Bunion Taft, seems to have been competent. Be this as it may, however, the prisoner waived the benefit of his exceptions to its admission by permitting other evidence to the same effect to be received without objection. S. v. Oxendine, 224 N. C., 825, 32 S. E. (2d), 648.

The record does not sustain the prisoner’s contention that he suffered prejudice because the court in its charge used more time in reviewing the contentions of the State than it did in outlining those of the prisoner. The action of the court in this respect was made inevitable by the fact that the volume of the State’s testimony was much greater than that presented in behalf of the accused. S. v. Cureton, 218 N. C., 491, 11 S. E. (2d), 469. As Mr. Justice Barnhill observed in S. v. Jessup, 219 N. C., 620, 14 S. E. (2d), 668, if the prisoner “considered that the court had failed to give fully and accurately the contentions made by him, or if he desired any amplification thereof, it was his duty to call the court’s *727attention thereto at the time.” The prisoner’s exception to the charge “as a whole” is an unpointed exception which is unavailing on appeal. Miller v. Bottling Co., 204 N. C., 608, 169 S. E., 194. The other exceptions to the charge have been abandoned under Rule 28.

The jury found the prisoner guilty of the crime of arson, but did not recommend that his punishment therefor should be imprisonment for life rather than death as authorized by the statute. G. S., 14-58. Likewise, it convicted him of murder in the first degree. G. S., 14-17. Hence, the sentence of death was mandatory.

"We have striven to give the matters at issue on this appeal a consideration commensurate with the present plight of the prisoner and the deplorable tragedy out of which the prosecution arose. Our endeavor in this respect convinces us that no error in law occurred on the trial.

No error.