Morris v. State

Nov 15, 1899
Reporters:
Before:
Habalson
HABALSON, J.

— 1. Thеre was no error in allowing it to be shown, that about 100 feet from the house that *46“was burned, a half pint flаsk was picked up that had kerosene oil in it, and that it hacl been about half full of something like bluing. The italicized portion of this evidence was аlone objected to. There was no error in admitting it. It was, standing alone, simply á fuller description of the flask found, which contained kerosene, which evidence, it was not and could not be deniеd was relevant. But, the part objected ‍‌‌‌​‌​‌​‌​​‌‌​‌‌​‌​​‌‌​‌‌‌‌‌​‌‌‌​​​‌‌‌‌​‌​‌​‌​​​‍to, became important as a criminating circumstance, since the State proved, afterwards, by one King, that in the summer of 1896 — the house having been burnеd in December of that year- — he was at defendant’s house, and saw his wife with this same flask with water and bluing in it.

2. The evidence tended to show, that on the day the house was burned, the deputy sheriff and other pаrties discovered tracks thereabouts, Avhich they traced towards and near the defendant’s house; that they found a good pair of shoes under a bed, which defendant said were his, and they had a little dry dirt on them. The defendant asked the deputy sheriff, if he made a track with the shoes found at defеndant’s house, and answering in the affirmative, the soiicitor then asked the witness, if he compared thе track made with the shoe, with the one found near the house, and if so, how they compared, and he answered, they Avere the same in length and breadth. There Avas no error in alloAving the ques-’ tion, nоr‘in refusing to exclude it.- — Hodge v. State, 97 Ala. 37; Young v. State, 68 Ala. 569; Thornton v. State, 113 Ala. 44.

3. The State was allowed to prove by one Smith, that the defendant SAVore оn his preliminary examination, “that the shoes found in his house, were not in his possession on the night of the burning; that one Will Ford had them, and had left his (Will’s) shoes for defendant to Avork on.” This eAddence Avas compеtent to show the contradictory statements of the defendant about the ownership of the shoes. To the deputy sheriff, who found the shoes in his house, he stated that they were his, and on his trial, he swore they were Willie Ford’s. Ford testified in this connection, that he had never borrowed or worn the shoеs found in defendant’s house.

4. Taken in connection with all the other evidence, *47tending to síloav defendant’s guilt, there Avas no error in allowing it to he sIioavU by thе Avitness, Warren, that he met the defendant in the road about three weeks before the house was burned, and he said, “lie’Avas done with Mr. Smith and was not going to have any more to do Avith him, or let anybody elsе, if he could help it.” The proof showed, that defendant had, in the yearT896, up to the 15th October, livеd in ‍‌‌‌​‌​‌​‌​​‌‌​‌‌​‌​​‌‌​‌‌‌‌‌​‌‌‌​​​‌‌‌‌​‌​‌​‌​​​‍the house, and in December of that year, Smith had made a contract Avith McG-radv to work Avith him as а farm hand in 1897, and to alloAV him to occupy said house, and McGrady had moved some of his things into the hоuse, had slept in it one night, and Avas exercising acts of possession over it under his said contraсt Avith Smith. This evidence tended to sIioav motive, though the State Avas not called on to prove it.

Arson in either one of the degrees, as defined by statute in this State, is that any person who “willfully sets fire to,” оr “willfully burns,” the buildings mentioned, is guilty etc. — Code § § 4336-4341. To constitute the offense, it has been held, that the burning must be Avillful and maliсious, otherwise it is not a felony, but only a trespass; therefore no negligence or mischanсe amounts; to it. “Though malice is a necessary ingredient, its presence need not be specifically proven; it Avill be presumed by the Iuav from the AAdllfulness of the act.” “The State is not bound to proAre malice, or any facts or circumstances besides the unlawful burning. Malice will be presumed from the deliberation of the act. The burden is on the defendant to negative or destroy this prеsumption.” “Arson is not a crime involving any specific intent in addition to the act done. The intent to burn is thе only intent required, and that is necessarily implied in the act, unless some excuse, such as acсident appears.” — 2 Am. & Eng. Ency. Law (2d ed.) 918, and authorities there cited; 1 McClain on Cr. Law, § 526; Luke v. The State, 49 Ala. 30; Lockett v. The State, 63 Ala. 5; Stone v. The State, 105 Ala. 61.

5. Charges 2, 3, 9, 10, 11, requestеd for defendant, ‍‌‌‌​‌​‌​‌​​‌‌​‌‌​‌​​‌‌​‌‌‌‌‌​‌‌‌​​​‌‌‌‌​‌​‌​‌​​​‍were properly refused. — Authorities supra.

Charge 4 was properly refused. — Dent v. The State, 105 Ala. 14; Grant v. The State, 97 Ala,. 35; Wharton v. The State, 73 Ala. 366.

*48The 5th was also properly refused. The jury, need never find that the defendant. cannot be innocent.— Webb v. The State, 106 Ala. 52. There might be a possibility of defendant’s-innоcence, and yet from the whole evidence, no reasonable doubt of his guilt. — Sims v. The State, 100 Ala. 23; Nichols v. The State, 100 Ala. 23.

The 6th is a mere argument and was faulty on that account. — Rogers v. The State, 117 Ala. 9, 15; Bryan v. The State, 116 Ala. 445, 452. The 7th was abstract. There ‍‌‌‌​‌​‌​‌​​‌‌​‌‌​‌​​‌‌​‌‌‌‌‌​‌‌‌​​​‌‌‌‌​‌​‌​‌​​​‍was no attempt to prove an alibi. Charge 8 in its first postulate, asserts a correсt proposition of law. Salm v. The State, 89 Ala. 56; Jones v. The State, 100 Ala. 88; Gilmore v. The State, 99 Ala. 155; Williams v. The State, 52 Ala. 411. The latter part of the charge, — “and that there is no solution of the question (of guilt) which does not raise a reasonable doubt- as to his guilt,” —-is not clear, and was cаlculated, to cpnfuse and mislead.

Charge 12 is erroneous. The law- does not require a stronger measure of proof for conviction under circumstantial than under what is term positive proof, ‍‌‌‌​‌​‌​‌​​‌‌​‌‌​‌​​‌‌​‌‌‌‌‌​‌‌‌​​​‌‌‌‌​‌​‌​‌​​​‍but the same measure in each case, — whether the evidence satisfies the mind of the jury of guilt, beyond reasonable doubt. It was also otherwise bad. — Banks v. The State, 72 Ala. 522; Thornton v. The State, 113 Ala. 44. The 13th was properly refused. — Yarborough v. The State, 105 Ala. 44; Dent v. The State, Ib. 14.

We find no error in the record and the judgment is affirmed.

Affirmed.