On appeal of right from the decision of the Court of Appeals,
Defendant was charged in an indictment proper in form with wantonly and willfully burning her dwelling house, a violation of G.S. 14-65. At trial the State's evidence tended to show that on the evening of 6 May 1980, defendant was seen leaving her home and hurriedly driving away. A few minutes later, smoke and flames were seen coming from the dwelling. The fire was reported and quickly extinguished. Defendant came to the dwelling while the firefighters were still on the scene. Her right foot was slightly burned and the legs of her pants were melted and scorched. Investigations conducted after the fire revealed it to be of incendiary origin and tests performed on several samples of burned items from the home indicated the presence of gasoline. A burn pattern on the living room carpet tended to show that a flammable substance had been poured on the carpet in a circular configuration and had subsequently caught fire.
The State also introduced evidence that defendant's home had been appraised at $4,170 in 1974 for property tax purposes and had been insured in January of 1980 for $35,000.
Defendant's evidence tended to show that she had a good reputation in her community and that she had lived there most of her life. Defendant took the stand in her own behalf and testified that on the evening of 6 May 1980, at about 7:30, she decided to take her two sons and some other neighborhood children to a movie. The children were told to return home to get their money and to gather at defendant's mother's house, about a block away from defendant's home, at 8:00. Her two sons left her home shortly
after 7:30 that evening and walked to her mother's to return a chain saw. Defendant talked to two other children about going to the movie, went into the house to get her pocketbook and newspapers and came out to start the car at about 7:35 p.m. After she started the car she let it warm up for a few minutes while she cleaned out the car. She then realized that she had forgotten a book and went back to the house to retrieve it. About ten to fifteen minutes elapsed between the time she left the house and the time she re-entered it. When she pushed open the door and stepped in she was met by a wall of flames. She backed out and closed the door. Then she realized that her pants leg was on fire. She took off her pants and put out the fire. She ran to her car and drove to her mother's home where she reported the fire. She didn't use a neighbor's telephone to report the fire because she was clad only in a blouse and undergarments.
Defendant was found guilty as charged by the jury and was sentenced to three to five years' imprisonment.
Defendant appealed her conviction to the Court of Appeals. That court, in an opinion by Judge Webb, in which Judge Robert Martin concurred, found no error in her conviction. Judge Wells voted for a new trial. Defendant appeals to this Court as of right pursuant to G.S. 7A-30(2).
The question dispositive of this appeal is whether the trial court erred in denying defendant's motion to dismiss the charge at the close of all evidence. We conclude that the charge should have been dismissed and reverse and remand for entry of an order of dismissal.
The statute under which defendant was charged, former G.S. 14-65, provided:
If any person, being the occupant of any building used as a dwelling house, whether such person be the owner thereof or not, or, being the owner of any building designed or intended as a dwelling house, shall wantonly and willfully or for a fradulent purpose set fire to or burn or cause to be burned,
or aid, counsel or procure the burning of such building, he shall be guilty ...