Mitchell v. State, 140 Ala. 118

Mitchell v. State

140 Ala. 118 | Ala. | 1903

SHARPE, J.

The defendant was convicted on an indictment charging her with burning the house of Sue Harris. On the trial after the introduction of circumstantial evidence having a tendency to show that the house of Harris was in the night time set on fire by defendant and partially burned, the State was, against objection, allowed to introduce evidence to show that on the same night and near the same time of that burning, the house of one Murphey, which stood about 450 yards from the house of Harris, was intentionally burned, and to show further that after that fire tracks of a woman’s shoes of the number worn by defendant were found leading from Murphey’s. A rule applicable in criminal prosecutions generally, renders inadmissible evidence of *121any offense other than that for which the prosecution is had. To this rule there are exceptions such as are mentioned in Gassenheimer v. State, 52 Ala. 313, and in Curtis v. State, 78 Ala. 12, in which latter case it was said: “When it is material to show the intent with which the act charged was committed, to illustrate its criminality, or to identify the accused as the person who committed the act, such evidence is admissible.” - The jury was instructed “not to consider the evidence as to the burning of Murphey’s house except so far as it might tend to show a guilty agency or intent in the burning of the house of Harris,” and there was evidence that defendant haying enmity towards Murphey and Sue Harris had said she would “fix both him and his sister Sue Harris.” Such utterances of defendant, if made, may have implied a threat to injure both of the persons at whom it was directed* and the burning of Murphey’s house, if attributable to her, might by the jury have been considered as done in the execution of that threat; and, therefore, the evidence in question was, in connection with the evidence of the threat, admissible as tending to identify defendant as the person who fired the house of Harris and to shoiv such firing was done with criminal intent.

Such evidence having been adduced by the State the court should not have rejected the offer of defendant, which, according to the bill of exceptions, ivas “to introduce before the jury the record of the city court showing that at the last term of the city court said defendant had been tried and acquitted of burning Rafe Mur-phey’s house.” The evidence so offered ivas admissible under the doctrine of res ad judicata whereof it has been well said: “A final judgment on the merits determining any issue of law or fact after a contest over it, forever sets at rest, and fixes it as a fact or as the law in any other litigation between the parties.” — Van Fleet’s Former Adjudication, 2, e/t seq. “And a record of conviction of the defendant in the same jurisdiction being an adjudication in which the same parties were litigants may be conclusive when showing a relevant fact.” Wharton’s Crim. Ev. (9th ed.) § 602, a. See also Com. *122v. Evans, 101 Mass. 25. Whether the production in evidence of a record such as defendant offered to produce would have rendered the State’s, evidence of the burning of Murphey’s house subject to exclusion is not a question here raised or determined!

The question asked the witness Haigler as to whether “his testimony was the same as it was when he testified as to the burning of Rafe. Murphey’s house, for which the defendant had been .acquitted,” was too indefinite to serve for impeaching the witness and cannot be considered as an offer to prove an acquittal of. defendant in respect to Murphey’s house, such acquittal being merely assumed in the question.

The charge requtested by the defendant was misleading as was said of a similar charge in Avery v. State, 124 Ala. 20.

For the error in rejecting the offer above referred to, the judgment will be reversed and the cause remanded.

Reversed and remanded.