Hughes v. State

75 Ala. 31 | Ala. | 1883

SOMERVILLE, J.

The defendants were indicted, tried and convicted of the crime of arson in the first degree — a capital felony under the statutes of this State. The particular offense charged is the willfully setting fire to, or burning, in the nighttime, the dwelling house of one Ilemy Porter, in which there was at the time a human being, to-wit, the said Ilenry Porter.

The bill of exceptions taken by the prisoners shows but a single exception to the introduction of evidence. On cross-examination of a -witness for the State — one Fitch — the prisoners’ counsel-had asked him if Mr. Porter and Miss Standish, who were inmates of the house tat the time of the burning, and who had testified to the identity of the prisoners, did not withhold the names of persons whom they suspected as the guilty parties, and whether they did not do this in witness’ presence ; and this question had been answered in the affirmative.

On re-examination the court permitted the State to ask the witness “ what reason, if any, did Mr. Porter and Miss Standish assign for withholding the names of the persons whom they suspected.” An objection was,interposed to this question by the defendants, but was overruled by the court.

The record fails to show that any answer whatever was made to this question, and this alone is a sufficient reason why no error can be predicated upon the mere asking of the question. Roberts v. The State, 68 Ala. 515 ; Eagle, etc. Man’g Co. v. Gibson, 62 Ala. 369 ; Jackson v. Clopton, 66 Ala. 29.

The answer, moreover, if made, may have been clearly relevant. It may have disclosed the fact that the silence of the witnesses was induced by prudence arising from apprehension of harm, or from a desire to conceal the facts until proper warrants of arrest were made, securing the arrest of the suspected parties. In any aspect of the case, we see no error in the ruling of the court.

The first charge requested by the defendant Smith was an invasion of the province of the jury and was properly refused. Whether the evidence alluded to in the charge was conclusive of the defendants’ guilt or not, was a question fo'r the jury, and not for the court. This charge was also misleading, for the reason it seems to assume that the possession of the stolen property in question was the only evidence of guilt, whereas this evideuce was corroborated by other circumstances of an inculpatory nature.

The second charge was misleading on the ground of its tendency to withdraw from the jury all criminative evidence except that touching the positive identity of the prisoners by the witnesses who swore to their recognition on the night of the alleged burning. The jury might have convicted on other testimony than that of positive identity, and hence, it was not requisite that they should feel “ an abiding confidence and full faith ” that the witnesses were not mistaken in the fact of such identification by personal rec.ognition. This charge was also argumentative in asserting that “ the law books are full of cases of mistaken identity ” — a fact which was neither proved on the trial, nor was it permissible to be proved. The court did not err in its refusal.

The third, fourth and fifth charges requested by the defendants were erroneous in assuming that the defendant Grayson could not be convicted of complicity in the crime charged, unless he was personally present at the time of the burning of the house. He may have been absent from the place, at the time of the actual burning, and have still been guilty as a principal in the first degree.

It was not necessary to the conviction of either of the defendants that he should either have himself set fire to the house of Porter, or have personally “assisted” any other person in doing so. There is no distinction, under the statutes of this State, between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, the common law distinction in this particular being expressly abolished, and “ all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not pz’esent,” are authorized to be indicted, tried and punished as principals. — Code, 1876, §4802.

The sixth charge asked by defendants and refused by the court was also .erroneous in assuming that, to charge a defendant with the crime of arson, he must either himself have perpetrated the burning, or have aided and abetted others,, at the time, in doing so. This is obviously incorrect, for an accessory before the fact, as we have seen, though not a chief actor in the offense, nor present at the time of its perpetration, is held to be as guilty as a principal.

The seventh charge requested by tire defendants -was properly refused for more than one sufficient reason. It was, in the first place, unsupported by any evidence, as far as concerns the hypothesis that Grayson’s confessions made to -the witness Bain were not confessions, but a mere restatement of what was said at the preliminary trial. It would, moreover, have been an invasion of the province of the jury to instruct them to acquit Grayson on the testimony connecting him with the crime charged, exclusive of his confessions.

We discover no error in the record, and the judgment of the court must, therefore, be affirmed as to each of the several defendants. • It is accordingly ordered and adjudged that, on Friday, the first day of August, 1884, the sheriff of Jackson county execute the sentence of the law by hanging the said' defendants, George Smith, Asbury Hughes and George Hughes, each by the neck until he is dead, in obedience to the judgment and sentence of said circuit court as herein-affirmed.