{
  "id": 8695846,
  "name": "STATE v. ASBERRY THORNE",
  "name_abbreviation": "State v. Thorne",
  "decision_date": "1879-06",
  "docket_number": "",
  "first_page": "555",
  "last_page": "560",
  "citations": [
    {
      "type": "official",
      "cite": "81 N.C. 555"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T19:00:55.261653+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. ASBERRY THORNE."
    ],
    "opinions": [
      {
        "text": "Smith, C. J.\nThe indictment charges that the defendant did unlawfully, maliciously and feloniously set fire to and burn a gin house of V. B. Sharpe and W. H. Weathersbee with intent to injure and defraud them, and the jury find him guilty.\nThe act of April 10th, 1869, makes \u201c the wilful burning of any gin house or tobacco barn, or any part thereof, or in the night time, any stable containing a horse or horses, or a mule or mules,\u201d an offence punishable by confinement in the state\u2019s prison from five to ten years. Bat. Rev., ch. 32, \u00a7 6.\nSubsequently the act of March 22nd, 1875, was passed, which declares the unlawful and malicious setting fire \u201c to any church, chapel or meeting house,\u201d or \u201c to any house, stable, coach house, out-house, warehouse, office, shop, mill, barn or granary,\u201d or \u201c to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them respectively shall then be in the possession of the offender, or in the possession of any other person, with intent thereby to injure or defraud any person,\u201d to be a felony for which on conviction, the offender shall be subject to confinement in the state\u2019s prison for a term \u201cnot less than five nor more than forty years.\u201d Laws 1874-75, ch. 228.\nThe indictment is intended to be drawn, and the judgment of the court pronounced, under the last act.\nDuring the trial an exception was taken by the defendant to the overruling of his challenge to a tales juror tendered, based on the act of March 12th, 1879, for the reason \u201c that such juror has acted in the same court as grand or petty juror within two years next preceding such term of the court.\u201d Laws, 1879, ch. 200. The facts do not come within the statute, and the objection is not tenable. The juror had been summoned on a special venire and had attended a term of the court within that time, but his name was not drawn, and a jury being obtained without him, he was discharged. The disqualification attaches to the juror who \u201chas acted\u201d or served as such, and not to one who has been at the court under a summons, liable only to be called on for such service. The juror was therefore not incompetent.\nThe defendant further excepts to the sufficiency of the bill of indictment to warrant judgment against him under either of the before recited acts :\n1. Not under the latter, for the reason that a gin house is not named among the houses and buildings mentioned therein, and is not therefore within its scope and operation; nor\n2. Under the first, for that, the bill fails to allege the burning to have been \u201c wilfully \u201d done.\nThe acts are not inconsistent, nor does the one interfere with and supersede the other, though both relate to the offence of burning houses. The first is confined to a few designated buildings, the wilful burning of which, and of one containing a horse or mule when done in the night season only, is made an indictable offence. The other extends to houses and other buildings, specifically named, and requires as constituents of .the crime that the act be done maliciously and with an intention to injure or defraud the owner, which are not ingredients in the criminal act described and denounced in the former. A gin house is not mentioned in the latter act, and unless embraced in the word \u201c house,\u201d is not within its scope and meaning. The question suggests itself, if the word is used in its most comprehensive sense and is intended to include every kind and form of building or structure, why are others mentioned at all? The enumeration would be upon such a construction wholly superfluous. The term must have a more restricted import, and such seems to be the interpretation put upon similar language contained in the English statute of 7 and 8, George IV, ch. 30, \u00a7 2, which punishes the burning of \u2018\u2018any house, stable, coach house, outhouse, warehouse, office, shop, mill, malt house, hopoast, barn or granary, or any building or erection used in carrying on any trade or manufacture, or any branch thereof.\u201d A house, in the latin, domus, is a dwelling place or mansion, as known at common law, distinguishable as such from all other buildings, used for different purposes, and entitled to peculiar favor and protection. Hence in the old forms of indictment for arson, the subject of the offence is sufficiently described as the \u201chouse\u201d of the prosecutor, which imports it to be a dwelling house. 2 East P. C., 1020 and 1033; Rex v. Donevan, 2 Wm. Bl., 682; 1 Leach Cr. Cases, 69. In the same sense must the word be understood in our act, and hence the burning of a gin house is not-under its condemnation.\nBut in our opinion the conviction may be sustained under the prior act of Anril 10th, 1869. While the indictment makes allegations not required by the act, it embodies every charge essential to the constitution of the crime, and the unnecessary averments may b\u2019e treated as harmless.surplus-age. They do not vitiate a verdict which finds them all to be true, nor afford ground for an arrest of judgment.\nFor the defendant, the substitution of the words \u201c unlawfully, maliciously and feloniously\u201d as descriptive of the defendant\u2019s intent in place of the \u201cwilful\u201d burning mentioned in the act, is relied on as a fatal defect in the bill. The objection is without force. ' It is difficult to conceive how an act can be done maliciously and not wilfully. The former is the more comprehensive and includes the latter. And so it is held that the charge that perjury had been committed \u201c falsely, maliciously, wickedly and corruptly, implied that it was done wilfully\u201d 2 Whar. Cr. Law, \u00a7 1673, and authorities referred to in note.\nThe punishment imposed in the sentence of the court is however in excess of that authorized by the act of 1869, and the judgment must be reversed. This will be certified to the end that judgment be pronounced according to law, as declared in this opinion.\nError. ' Reversed and remanded.",
        "type": "majority",
        "author": "Smith, C. J."
      }
    ],
    "attorneys": [
      "Attorney General, for the State.",
      "Messrs. W. B. Hodman and W. P. Williamson, for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. ASBERRY THORNE.\nJuror \u2014 Indictment\u2014Burning Gin House \u2014 Statutes Construed\u2014 Punishment.\n1. One who had been summoned on a special venire, but not drawn on the jury, within two years next preceding the term of court at which he is summoned as a talesman, is not thereby disqualified under the act of 1879, ch. 200. To render such talesman incompetent, it must be shown that he \u201chas acted\u201d or served upon a jury within the time prescribed by the act.\n2. An indictment for burning a gin house charging the offence to have been done unlawfully, maliciously and feloniously, is sufficient under the act of 1869, ch. 167, \u00a7 6. The words used in the bill as descriptive of the intent imply that the act was done \u201cwilfully.\u201d\n3. An indictment for such offence under the act of 1875, ch. 228, cannot be supported; though where it was intended to be drawn thereunder, and is sufficient under the former act, a conviction will be sustained. The two are not inconsistent, but the words \u201cany house\u201d in the latter act do not include \u201cgin house.\u201d\n4. Where the punishment imposed by the sentence of a court is unauthorized, the judgment will be reversed and the case remanded to the end that a legal judgment may be pronounced.\nINDICTMENT under the act of 1874-75, ch. 228, for burning a Gin House tried at Spring Term, 1879, of Edgecombe Superior Court before Eure, J.\nThe bill charged that the defendant did unlawfully, maliciously and feloniously set fire to and bum the gin house of V. B. Sharpe and W. H. Weathersbee, the gin house being used for the purpose of ginning cotton, and in the possession of said owners, Sharpe and Weathersbee, and with the intent to injure and defraud them, contrary, &c.\nDuring the trial a juror was called as a talesman and challenged by the defendant for cause under the act of 1879, ch. 200, and it appeared that within the two years next preceding said term of the court, he had been summoned on a special venire issued in a case of felony then pending, and had attended court under the summons, but a jury being had before his name was drawn, he did not serve thereon. The cause of challenge was held to be insufficient. Defendant excepted, and then challenged the juror peremptorily, and before a full jury had been drawn, the defendant exhausted his peremptory challenges.\nThe evidence in the case was that the defendant burned the gin house in the night time; that the gin house was used for ginning cotton the property of said Sharpe and Weathersbee; but there was no evidence that they ginned cotton other than their own. The defendant asked the court to charge the jury, 1. That there was no evidence the defendant had done any act made criminal or penal by the statute under which the indictment is drawn, and that the gin house used as above set forth was not in the scope or purview of that statute. 2. That the act in Bat. Rev., ch. 32, \u00a7 6, was in force and has not been repealed, and defendant cannot be convicted under that act because the indictment does not charge the burning to ha.ve been done wilfully, and that the words used in the indictment are not a sufficient substitute for'the word \u201c wilfully,\u201d and that the jury should acquit the defendant. The court declined to charge as requested, and defendant excepted. Verdict of guilty, judgment that the defendant be confined at hard labor in the penitentiary for twenty years, appeal by defendant.\nAttorney General, for the State.\nMessrs. W. B. Hodman and W. P. Williamson, for defendant."
  },
  "file_name": "0555-01",
  "first_page_order": 571,
  "last_page_order": 576
}