Miller v. StateMiller v. State
- Reporters:
- Before:
- Saeeold
The appellant was convicted of arson in the first degree upon an indictment containing fоur counts. The first count charged that he “ willfully set fire to or burned in the night time a dwelling-house of G. R. Mason, in which there was at the time a human being.” The second charges him in like terms with burning a house adjoining a dwelling-house of G. R. Mason. The third differs from the first only in describing the dwelling-house as the property of N. Tate. The fourth diffеrs from the second only in describing the house burned as one adjoining a dwelling-house of N. Tate. The dеfendant demurred to the indictment as a whole, аnd also to each count separately. The demurrers were overruled.
The charge in еach count of the indictment is of arson in the first dеgree, and complies with the form prescribed in the Revised Code, which has been held to be suffiсient. Martha v. The State, 26 Ala. Rep. 72. Separate offenses are chаrged in each count, but they are of the samе character and subject to the same punishment. The statute authorizes them to be joined even in the same count. — Rev. Code, § 4125; Martha v. The State, 26 Ala. 72; Johnson v. The State, 29 Ala. 62.
The defendаnt showed to the court that the copy of thе indictment served upon him contained only threе counts, whereas the original included four. His demurrеr was extended to all of them, and the trial prоceeded not only without objection, but with his consent. The service of the defective copy of the indictment was not a compliance with the statute, and would be a cause of rеversal, if the defendant had not waived it. — Robertson v. The State, 43 Ala. 325. By the fedеral Constitution, article 6, the right of the accused is, to be informed of the nature and cause of accusation. This is considered to be complied with by reading the indictment to him when he is arraignеd. Our State constitution, article 1, § 8, requires a copy of the accusation, or indictment, to be given the accused; but, *26unless he applies for it, this has not been regarded as imperative, еxcept when he is in prison for a capitаl offense. This right is not one of those features оf the trial, the observance of which the common law regarded as so essential to the рroper protection of the accused, that even his consent could not dispensе with it. He may waive it, and will be bound by his action.
It is the genеral rule of evidence, that husband and wife cаn not be witnesses for or against each othеr. There are some exceptions, as where one is prosecuted for an assault and battery, or other injury, committed upon the other.—Neill v. The State. 6 Ala. 685. In this case, the wife was not a competent witness to prove the alibi of her husband. 1 Phil. Ev. 90, (4th Am. ed.)
The judgment is affirmed.