The facts are sufficiently stated in the opinion of the Court by MR. CHIEF JUSTICE CLARK. This was an indictment for burning a barn. The first exception is to the refusal of the court to charge the jury that the evidence was not sufficient to warrant a conviction and to return a verdict of not guilty. Upon this prayer we can consider only the evidence most favorable to the State.
There was evidence that the defendant lived about one mile from the prosecutor; that there was bad blood between them; that the prosecutor, who was the owner of the burnt barn, had reported the defendant for running a blockade still; that the defendant had endeavored to get the witness Blue to hide on the roadside and shoot the prosecutor, and a few days before the barn was burnt had endeavored to get said Blue to burn the barn; that the barn was burned one night in November, and that on that night, when the witness Blue, who was visiting the defendant's house, started to leave, the defendant insisted on his staying all night, promising him fried chicken and liquor for breakfast; that Blue when he went to bed left his shoes in a corner of the next room; that the next morning he found his shoes in the middle of the room, wet, muddy, the vamps mashed down and the strings broken; that the (467) next morning tracks corresponding to Blue's shoes were found leading by a devious route to the barn from defendant's house and going back to defendant's house; that Blue's shoes had an iron on heel and the toe of the right foot pointed in; that these pecularities *Page 379 showed in the tracks found; that Blue's shoes were too small for defendant, and that the next day the defendant was limping and said he had a sprained ankle.
We think that the above evidence was sufficient to submit the case to the jury. S. v. Hunter, 143 N.C. 610; S. v. Daniels, 134 N.C. 655.
The theory of the State was that the defendant had used Blue's shoes, which, being too small for him, he had used by mashing down the vamps. The solicitor, in his argument, contended that when shoes are too small for a man he can wear them by mashing down the vamps, and exhibited shoes with the vamps thus mashed down, stating that he did this for illustration and that the shoes were not in evidence. On objection by the defendant, the court told the solicitor not to proceed further along that line, and said to the jury that the solicitor was only illustrating his argument, and that the shoes were not in evidence. We cannot perceive how the defendant was prejudiced thereby.
No error.