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North Carolina v. Oxendine

Filed: January 27, 1982.


On appeal as a matter of right from the judgment of Small, J., entered at the 23 February 1981 Criminal Session, Robeson Superior Court, imposing a life sentence for defendant's conviction of arson. Defendant was also convicted of the felonious burning of a building, and the trial court imposed a judgment of ten years' imprisonment. Defendant's motion to bypass the Court of Appeals, for review of his additional conviction, was allowed on 4 August 1981.

Copeland, Justice.


Defendant argues five assignments of error which he believes require either a reversal of his arson conviction or a new trial. We disagree and affirm.

Defendant first contends that the trial court erred in overruling his motion to dismiss the arson charge. It is well established that a successful arson prosecution requires proof that defendant

maliciously and willfully burned the dwelling house of another. State v. White, 288 N.C. 44, 215 S.E.2d 557 (1975); State v. Arnold, 285 N.C. 751, 208 S.E.2d 646 (1974). In the instant case, defendant challenges the sufficiency of the State's evidence upon the "burning" element of the offense. He complains that the evidence adduced against him was too meager to convince a rational trier of fact that he actually burned the structure of an inhabited dwelling. Under the circumstances of this case, defendant's position is indefensible.

The law is clear that some portion of the dwelling itself, in contrast to its mere contents, must be burned to constitute arson; however, the least burning of any part of the building, no matter how small, is sufficient, and it is not necessary that the building be consumed or materially damaged by the fire. State v. Mitchell, 27 N.C. 350, 353 (1845); State v. Sandy, 25 N.C. 570, 574 (1843); see Annot., "Burning as element of offense of arson," 1 A.L.R. 1163, 1166 (1919). The accepted legal definition of "burning," for purposes of an arson case, is best stated in State v. Hall, 93 N.C. 571, 573 (1885):

The crime of arson is consummated by the burning of any, the smallest part of the house, and it is burned within the common law definition of the offense when it is charred, that is, when the wood is reduced to coal and its identity changed, but not when merely scorched or discolored by heat.

Applying these principles to the case at bar, we hold that the State's evidence was sufficient to authorize a reasonable conclusion that the building in question had been burned.

Miss Locklear, owner of the dwelling, testified that, after hearing her son exclaim, "Fire!", she went into the bedroom "where the fire was at" and saw fire and smoke coming out of it. She said that the house was still "burning, slowly" when the fire truck arrived. [By this time, Miss Locklear and four of her neighbors had essentially doused the blaze.] Miss Locklear further stated that, during the fire, the "current had burned loose" in the house.*fn1 Myrtle E. Blanton testified that she drove by the Locklear house on 9 December 1980 and saw "a fire and a lot of smoke." Mrs. Blanton then commented to defendant, who was riding with

her on the way to the bus station, "your Aunt's house is on fire, everything she owns is burning up."*fn2 From the testimony of these two witnesses alone, one could reasonably infer that the fire inside the house was substantial enough to cause at least some charring of the structure, since the fire was accompanied by a great deal of smoke, was visible from the outside (the highway) and was responsible for the loosening of electrical wiring in the building. See State v. Hall, supra, 93 N.C. at 573. See also State v. Mitchell, supra, 27 N.C. at 353 ("fire set to combustible materials will naturally consume them").

Nevertheless, the State's case upon this essential element was further strengthened by the testimony of Officer William Halstead who described the subsequent condition of the residence as follows: "the curtains were burned and there was dark or burned patches over the wall; the wallpaper was burned and there was a heavy odor of kerosene. Smoke was throughout the house. . . . [T]he main house was or had been on fire." Surely, this evidence plainly showed that the dwelling itself, and not merely something in it (the curtains), had been burned. It is difficult to perceive how dark, burned patches could appear on a wall absent the prior incidence of at least minor charring of that wall's substantive material. Defendant's additional argument that the presence of burnt wallpaper in the dwelling had no rational tendency to indicate the charring of the building's structure simply defies good sense and logic. Wallpaper affixed to an interior wall ...

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