Lockett v. State

63 Ala. 5 | Ala. | 1879

MANNING, J.

We think there was no error in holding that the indictment was not obnoxious to the objection, that the ownership of the building to which fire was set was not sufficiently averred. In the form prescribed by the statute (Code of 1876, p. 995, No. 35), the charge is, that “A. B. willfully set fire to, or burned, in the night time, a dwelling-house of O. D., in which,” &c. This is the manner in which the ownership is alleged. In the indictment before us, the accusation is, that defendant “ did willfully set fire to, or burn, the jail of Talladega county,” &c. ' This, if there were no more, would be a sufficient averment of the ownership, according to the statutory precedent, each county in the State being a body corporate. — Code, § 815. But the indictment goes further, and says, “ which said jail or building was erected for public use.” The prosecution is under a statute which makes “ any person who willfully sets fire to, or burns, any church, meeting-house, college, academy, jail, or other building erected for public use,” guilty of arson in the second degree; and the averment, corresponding with this description of the jail, as the jail of Talladega county, and “ a building erected for public use,” clearly shows that the structure burned was the property of another than the defendant. — The State v. Toe, 12 Vermont, 93.

2. An accomplice, who consents to testify for the State, that a defendant committed the act for which he is indicted, can not shield himself from answering any relevant question concerning it, under the rule that he shall not be required to criminate himself. The principle of that rule, said the Supreme Court of North Carolina, “ does not embrace this case. For the witness is an accomplice, who is allowed to give evidence in favor of the State, with the express understanding that he is to disclose Ms own guilt. Consequently, a rule which was adopted in order to prevent a party from being required to criminate himself, and to avoid being criminated by a communication made to his attorney, has no application.” — State v. Condry, 5 Jones’ Law, 420. “If a witness consents to testify at all, so as to criminate himself as well as defendant, in the matter on trial, he must answer all questions legally put to him, concerning that matter. He can not be allowed to state such facts only as he pleases to state, and to withhold other facts.” For, thereby, “injustice might be done to the defendant, either by keeping back of testimony which would tend directly to bis acquittal, or which would so discredit the witness as to induce the jury wholly to disregard his previous testimony.” — Commonwealth v. Price, 10 Gray, 476.

Even in causes between individuals, where there can be no understanding, express or implied, that the witness should not be prosecuted for an offense of which his testimony might disclose that he was guilty: if, being aware that.he is not obliged to answer a question which may incriminate him, the witness does answer it, “ he can not afterwards take the objection to any further question relative to the whole transaction.” — Dixon v. Vale, 1 Car. & P. 278. And in East v. Chapman (2 Car. & P. 570), Abbott, C. J., said to a witness in that situation : “You might have objected to giving any evidence •; but, having given a long history of what passed, you must go on; otherwise, the jury will only know half of the matter.” It can not be tolerated that a person testifying, after stating material facts bearing upon the case, and favorable to one party, shall, when cross-examined in reference to the same subject, decline answering by reason of his privilege not to incriminate himself. — Foster v. Pierce, 11 Cushing, 437; Brown v. Brown, 5 Mass. 320. His obligation to answer, however, extends only to questions concerning the matter he ha.s testified about, and not to those concerning other matters, though they come within the scope of the cause. - Chamberlain v. Willson, 12 Vermont, 491; The State v. K-, 4 N. H. 562.

3. The question, whether the burning of a hole, by prisoners, in a jail, for the purpose only of enabling them to escape from it, but with the intent that the building should not be any further damaged, constitutes the crime of arson or not, is a question on which there has been much difference of opinion. Our predecessors, after careful consideration, gave to it an affirmative answer —Luke v. State, 49 Ala. 30. We regard this as the law in this State, and think the court below did not err in holding that such a burning was arson.

4. In the same case it was ruled, that the indictments preferred against prisoners who were in the jail at the time of the endeavor to break out, were admissible evidence-for the prosecution. These documents tended to show both the legality of their commitment and detention, and the nature of the offenses, from responsibility for which the defendant, by setting fire to the jail, was aiding them to escape.'

5. The statute is express, that “ a conviction of felony can not be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense : such corroborative evidence, if it merely shows the commission of the offense, or the circumstances thereof, is not sufficient.” — Code of 1876, § 4894 (4193). It is for the jury to decide, when there is in a cause any such corroborative evidence, what effect it is entitled to ; and it is unnecessary to anticipate ■what evidence of that kind will be adduced or offered on a future trial of appellant, or what instruction in respect of it shall be given to the jury.

Eor the error of informing the witness and holding that he was not bound to answer a relevant question, the answer to which might tend to incriminate him, the judgment must be reversed, and the cause be remanded. Let the prisoner remain in custody, till discharged by due course of law.