Martha v. State , 26 Ala. 72 ( 1855 )

CHILTON, C. J.

— The counsel for the prisoner is mistaken, in supposing that the Code does not require the ownership of the house alleged to have been burned to be averred in indictments for arson. — See forms Nos. 52 and 53, pp. 704-5. The Code makes no change upon the common law in this respect. East (in his Crown Law, p. 1084) says, “It is plain an indictment for arson must, upon the face of it, appear to be of the house of another, and it must also state whose house, and with that the proof must agree.”

In this case, it appears the proof did not agree, upon the trial of the first indictment, with the averment of ownership, and the defendant failing to consent to an .amendment (as provided for by the Code, §§ 3529-30-31), a noth pros, was entered, and a new indictment was preferred and found by the, grand jury, in which the ownership of the house was averred to be in another and different person from the one charged to be the owner in the first indictment. This appears to conform substantially to the provisions of the Code above referred to.

If, however, the withdrawal' of. the cause from the jury, upon the trial of the first indictment, could be regarded as a discontinuance of that prosecution, or was equivalent to an acquittal of the offence there, charged, it is perfectly'clear, that a discontinuance of a prosecution for wilfully and maliciously burning the house of Allen W. Coleman, or an acquittal upon an indictment for such offence, would be no bar to a subsequent prosecution upon an' indictment for arson in burning the house of James E. Todd. We have seen, that the indictment must aver whose house it was, and that no conviction can be had unless the proof sustains this averment. 2 East’s Crown Law 1034. Why is this? The reason is obvious : the record of the conviction would otherwise furnish iio bar to a subsequent indictment charging the arson to be of a dwelling-house the property of another person than the one named in the first indictment as the proprietor of the house. In other words, it would be to charge the prisoner with burning one house, and to find her guilty of burning another.

As, therefore, the offences charged in the two indictments are distinct and different, the record showing the discontinuance of, or acquittal upon the prosecution of the one, would be no bar to a prosecution for the other.

It may be said, however, that one count in the last indictment is for burning the dwelling-house of Coleman, and that this count agrees with the first indictment. So it does; but ■the pleas go to all the counts, and not merely to this one. The prisoner’s counsel insisted upon the former record as a com-píete bar to the several counts, one of which charges the house to be the property of James E. Todd; another charges the burning of a dwelling-house of James E. Todd, occupied at the time by Allen W. Coleman.

As the record showed the two indictments to be for different offences, and as a record cannot be gainsayed by parol-evidence, it was entirely proper for the court to charge the jury that the pleas of autrefois acquit and discontinuance were not sustained by the proof. This was no invasion by the court of the province of the jury ; for it was the duty of the court to declare the legal effect of the record insisted upon by the prisoner as sustaining her pleas. As a matter of law arising upon the effect of the record, the pleas remained wholly un-sustained.

We do not entertain a doubt as to the correctness of the ruling of the primary court. Its judgment is consequently affirmed, and the sentence of death, pronounced by said court upon the prisoner, must be carried into execution.