Savage v. State, 62 So. 999

Savage v. State

62 So. 999 | Ala. Ct. App. | 1913

PELHAM, J.

— The indictment upon Avhich the defendant was tried contained but one count and charged arson in the second degree, alleging the burning of a corncrib. The eAddence showed that the structure burned Avas a planked-up room or bin used for storing or *337bousing coin, and that connected and used in conjunction with this room and as a part of tbe structure on three sides thereof were roofed-over sheds or shelters, used for keeping and feeding mules and other stock and for housing and keeping cotton, fodder, wagons, and farm implements. It was also shown by the evidence of the owner that it was called “a cribthat it Avas “a barn where [Avere] kept mules and horses and everything.” Some of the state’s Avitnesses testified that the building Avas knoAArn and called a crib; but the evidence without conflict shows that there was no other barn or stable used in connection with the dwelling of the owner besides this building. The description and use to Avhich the structure was put as shoAvn by the evidence Avould not authorize the designation in the indictment of the building burned as a corn crib, under the holding in Jackson v. State, 145 Ala. 54, 40 South. 979, and under that authority it must be held that there is a fatal variance betAveen the allegations of the indictment and the evidence.

It Avas proper to uIIoav the Avitness SnoAV to testify that he owned the property burned. — Harper v. State, 109 Ala. 28, 33, 19 South. 857.

The testimony of the Avitnesses Gulley and Purifoy was relevant and admissible as tending to show a motive. —Simpson v. State, 11 Ala. 6, 20 South. 572; Overstreet v. State, 46 Ala. 30; Marler v. State, 67 Ala. 55, 42 Am. Rep. 95; Duncan v. State, 88 Ala. 31, 7 South. 104; Pate v. State, 94 Ala. 14, 10 South. 665.

The action of the court in permitting the solicitor to recall the Avitness Purifoy, after announcing that the state had closed its evidence on direct examination but before the defendant had offered any evidence in his behalf, was a matter entirely in the proper discretion of the trial court, and no abuse of discretion is shown.

*338The general charge requested by the defendant should have been given because of the fatal variance between the allegations of the indictment and the evidence here-inbefore pointed out. . The correct propositions contained in other refused charges are fully covered by the given charges.

The indictment was not subject to the demurrers interposed to it. — Henderson v. State, 105 Ala. 82, 16 South. 931; Cook v. State, 83 Ala. 62, 3 South. 849, 3 Am. St. Rep. 688.

For the reasons given, the judgment of conviction must be reversed.

Reversed and. remanded.