Bell's Adm'r v. Troy , 35 Ala. 184 ( 1859 )

STONE, <7.

If the slave, Pleas, burned the dwelling-house of Mr. Troy, there is no pretense that such burning was the result of negligence on his partin the performance of any act as the servant of Mr. Bell. No count in the complaint presents this view, and no part of the evidence tends to prove such state of facts. Taking the statement of the burning as given in any one of the counts of the original and amended complaint, it constitutes the crime of arson in the guilty perpetrator. — Code, § § 8185, 3188.

Section 3526 of the Code abolishes “the distinction between an accessory before the fact and a principal, and between principal in the first and second degree in felony.” Arson, either in the first or second degree, is a felony.— Code, § § 3193, 3071.

It results from these plain principles, that a count which charges that Pleas willfully burned the dwelling-house of plaintiff, and that said slave was instigated and persuaded ■thereto by the defendant, is, in form, a count in trespass, and charges the defendant with the commission of a felony.

On the other hand, some of the counts, in both the original and amended complaints, charge on the defendant’s intestate no actual or intentional procuration of the arson, but seek to base his liability on his negligently permitting Pleas, his slave, and of known bad character, to run at large, contrary to law. These counts, if they have any legal validity, are in case, and should not have been joined with a count in trespass. — Wilkinson v. Mosely, 30 Ala. 571, and authorities cited; 1 Smith’s Lead. Cases, notes of Hare & Wallace, 559, 560 ; 1 Chit. PI. 81.

We decline, however, to reverse this case on this ground, for the following reasons :

1. We are not fully convinced that any effect can be given to the counts in the complaint which are made to take, the form of counts in 'case, because it is exceedingly doubtful if the owner of a slave can be made liable, in the form attempted in said counts, for losses consequent on such misconduct of his slave. [See 1 Smith’s Leading Cases, 560 ; 1 Chit. PI. 81; Largan v. Mayor, 31 Ala. 469; 1 Bla. Com. 431; Blackburn v. Baker, 1 Ala. 173; Lindsay v. Griffin, 22 Ala. 629; Leggett v. Simmons, 7 Sm. &. Mar. 348; Wright v. Wilcox, 19 Wend. 343.] Consequently, if such counts set forth a state of facts on which no legal liability can be predicated, possibly the doctrine of misjoinder of counts could ' not be applied. It may be, that a complaint, thus framed, would preseut a simple case of surplusage.

2. Although the circuit court overruled the demurrer for misjoinder of counts, yet the demurrer was sustained to every count but one. If the court had sustained the demurrer for misjoinder, the plaintiff would have had leave to amend. — See Code, § § 2251, 2256 ; Wilkinson v. Mosely, 30 Ala. 562. Under such ruling, he might have offered his fourth count as an amended complaint;in which event, the trial and the various rulings would probably have been identical with those found in this record. The question might arise, then, if we should entertain the opinion that the court should have sustained the demurrer for misjoinder, should we or not hold that it was error without injury, seeing that the evils and inconvenience of misjoinder have been removed, by the action of the court in sustaining defendant’s demurrer to all the counts save one.

As we shall hereafter show, the judgment in this case must be reversed on other grounds. When the case is remanded to the.court below, these difficulties in the pleadings may be remedied by proper amendments ; either by changing the counts in case, or by striking them out. For this reason, we decline to announce any opinion on the questions discussed above, further than is therein expressed.

The fourth count of the complaint was also demurred to; and the demurrer to it being overruled, the trial was had on that count alone. We decline to consider any of the causes of demurrer which were assigned to the fourth count, except that after stated.

j? Under the rules above declared, the fourth count avers a felony committed by the defendant’s intestate. Its gravamen is, the injury to plaintiff resulting from the commission of the alleged felony. Under a well established and uniform rule in this court, the civil injury was merged in the felony,and the party aggrieved can maintain no action against the wrongdoer for personal redress, until the offender has been prosecuted,and the prosecution terminated. — McGrew v. Cato, Minor, 8; Morgan v. Rhodes, 1 Stew. 70 ; Middleton v. Holmes, 3 Porter, 424 ; Beazley v. Mitchell, 9 Ala. 780; Blackburn v. Minter, 22 Ala. 613; Martin v. Martin, 25 Ala. 201; Nelson v. Boudurant, 26 Ala. 341; Morton v. Bradley, 27 Ala. 640.

• It is objected to the fourth count, that it does not aver that the alleged act of instigation and persuasion of the slave Pleas, by Mr. Bell, took place in Dallas county; and hence that the averment, that “ the said defendant was duly and diligently prosecuted before the grand jury of said county, who inquired diligently into the charge of said burning, and found no true bill against the said defendant,” is insufficient: that it fails to show that the said grand juryhad jurisdiction to inquire of said offense.

Under very technical rules, perhaps this averment is defective. It can, however, be amended, when the case returns to the circuit court for further proceedings.

The report of the case of Nelson v. Bonduraut, supra, does not inform us whether the counts of the declaration fled in that case disclosed the fact that the killing took place in Perry county, before a grand jury of which county the alleged prosecution was conducted. We have looked into the record of that suit, and find that each count contains that averment. Hence, that case is not an authority on this question. We, however, deem it unnecessary to comment further on this objection, as the defect, if it be one, can so easily be remedied. — Code, § 3526, last clause; Bishop v. The State, 30 Ala. 34; Sheppard v. Furniss, 19 Ala. 760.

The question of the relevancy of evidence, cau never be reduced to rules of universal application. Much must depend on the circumstances of each particular case. It is said that evidence must be confined to the point in issue; and yet, in some cases, evidence may be received of facts which happened before or after the principal transaction, and which had no direet or apparent connection with it. — See 1 Greenl. Ev. § § 51, 53. Some questions necessarily open a wider range of incidental investigation than others. It may be observed that, generally, only those facts and circumstances which tend proximately to elucidate some proposition clearly involved in the issue, can be the subject of proof. — 1 Greenl. § 52. This, however, fails to furnish an unerring guide for each case; for, in some issues, the propositions clearly involved, are much more numerous than in others.

Again, some propositions rest, for their establishment, on circumstances alone. In some cases, these circumstances are far more numerous than in others. Moreover, the circumstance itself is sometimes unmeaning or um-ambiguous,when viewed abstractly. Viewed in connection with other circumstances, or in the light of collateral, though, of themselves, immaterial facts, it sometimes becomes palpably and impressively pertinent. In prosecutions for crime, where the testimony is circumstantial, the most material evidence is frequently of this kind. Among the evidences of guilt in such cases are enumerated the demeanor, conduct and conversation of the accused; inconsistent and contradictory statements, and the statement by him of falsehoods in relation to matters sometimes connected very remotely with the principal transaction. In proving the falsehood of these statements, it frequently becomes necessary that collateral facts, otherwise immaterial, should be explained to the jury. As elucidating this subject, see Johnson v. The State, 17 Ala. 618 ; Martin & Flinn v. The State, 28 Ala. 71; Liles v. The State, 30 Ala. 24.

It may be urged that this is not a criminal prosecution. The rules, as to the relevancy of evidence, are generally the same both in civil and criminal proceedings. — Roscoe’s Cr. Ev. 1; 1 Greenl. Ev. § 65. Moreover, the charges found in the complaint under which this trial was had, impute to defendant’s intestate a crime of high grade.

Applying those rules to the present case, we think the circuit court, for reasons hereafter stated, erred in permitting the plaintiff to prove that the dwelling-house of the witness Bird had been set fire to in May, 1856.

The court also erred, in permitting the advertisement of $100 reward, as published in the newspaper, to be read to the jury at the instance of plaintiff. It formed no part of the. conversation between the witness and defendant’s intestate. It simply furnished the occasion of that conversation. It contained nothing which could tend to explain, injuriously to defendant, any admission made in that interview, as testified to by this witness. There was nothing said by intestate, or by his father in his presence, so far as we are informed, which tends to prove either an express or implied admission by intestate, of the truth of' what is at least insinuated in said advertisement; and consequently, the advertisement was not legal evidence as an admission, express or implied. — Fuller v. Dean, 31 Ala. 654. Whether this advertisement would have been legal evidence for defendant, if he had offered it as explanatory of his self-sought interview with the witness, we need not inquire.

The exception in regard to the mittimus was not that the evidence was, per se, inadmissible and irrelevant. The ground of objection stated was, that secondary evidence was offered, without accounting for the absence of the primary evidence. As this question will probably not arise again in its present form, we need not determine whether the objection was well taken. — See Graham v. Lockhart, 8 Ala. 9; Snodgrass v. Br. Bank at Decatur, 25 Ala. 161, 173, and authorities cited.

It was permissible to prove by the witness, Mr. Bird, a reason why the circumstances to which he testified were impressed on his memory, unless the reason involved the introduction of matter improper for the jury to hear. Certainly it was competent for him to state, in confirmation of his recollection, that his attention, during the examination of Mr. Bell, was particularly directed to the facts about which he was testifying. Perhaps it would have been enough, in this connection, if the examination had simply called out the fact, that the transaction was impressed on the memory of the witness, because of the conflict between the testimony given before the magistrate by the intestate, and his former unsworn statement to the witness. "VVe think, however, that it is unnecessary to decide this question, as the witness’ statement of the motive which prompted him to examine, as he did, the witness Boll, was probably already made fully manifest, by this witness’ evidence of the questions addressed to Mr. Bel], and his answers thereto. The answer objected to may not have exerted any influence in the deliberations of the jury, and the question will not probably again arise in its present form.

There was error in admitting the remark of defendant’s intestate, commencing with the words, “Some folks object to these smart negroes,” &c. It is not apparent — made at the time it was — that it could have had any relation to the burning of Dr. Troy’s house. It should not have been received. — Brock v. The State, 26 Ala. 104; 1 Greenl. Ev. § 52 ; Dowling v. The State, 5 Sm. & M. 664; Ward v. Herndon, 5 Porter, 382.

The two questions raised on the testimony of the witness Haweth we 'will consider together. The plaintiff’s house was burned on the night of February 10th, 1856, under circumstances which induced, in some persons, the belief that it was the woi'k of an incendiary. In March following, the dwelling-house of Mr. Bird, brother-in-law to the plaintiff, took fire in the night-time; also the work, as some persons supposed, of an incendiary. On the day succeeding, or a week after the ignition of Mr. Bird’s dwelling, the testimony of the witness tends to show that he heard defendant’s intestate say to the slave Pleas, “ That’s right, damn ’em, burn ’em up.” We think the collateral fact, that Mr. Bird’s dwelling took fire, without any known accidental cause, so soon after the destruction by fire, and also wdthout known accidental cause, of the dwelling-house of his brother-in-law, the plaintiff', was a legitimate subject of proof, to be weighed by the jury in determining to what Mr. Bell referred, when he made to Pleas the remark deposed to by this witness, if he'made such remark. We think, also, that with this preliminary proof, there was no error in permitting the witness Haweth to testify to his understanding and recollection of the remark he overheard at the stable, and which he attributed to defendant’s intestate.

The effect which the jury will allow this evidence to have, is not a pure question of law, but is more a question for them. Of course," they must first be satisfied that the remark was made, and by Mr. Bell to the slave Pleas. Then the inquiry will arise, to what did tlie remark have reference ? There is always great delicacy, and should be corresponding caution, in assigning to an isolated expression, incomplete within itself, a particular meaning, in the absence of all proof of what preceded and led to it. We here refer approvingly to whatwe said in relation to suspicious circumstances, in the case of Liles v. The State, 30 Ala. 24.

As an independent fact, it was certainly not permissible to prove on this trial that another dwelling-house had been attempted to be burned. — 1 Greenl. Ev. § 52.

We are not able to perceive on what principle the defendant sought to prove that an indictment had been found against Pleas, and was yet undetermined, for the burning of plaintiff’s dwelling-house. While civil injuries, and the right to obtain redress for personal loss, are merged in the felony, and cannot, as against the felon, be redressed until a prosecution for the crime against the State has been set on foot and determined, this disability extends no farther than to the right to sue the felon himself. — See Beazley v. Mitchell, 9 Ala. 780.

We are not prepared to say that the two charges asked by defendant should not have been given. They seem to be free from objection. — See authorities on brief. On the other hand, the affirmative charge given appears to be quite as favorable to defendant as those refused, if not more so. It covers the same ground as that taken in the two which were refused. In such case, if the charge asked be free from involvement, or tendency to mislead, it is the duty of the court to give the charge in the precise language of the request. — Code, § 2355. Should there be apprehension, in the mind of the presiding judge, that the charges thus given at the request of either party had placed in undue prominence before the jury any particular phase of the case, it would be his privilege, if not his duty, to give an additional explanatory charge, so as to present before the minds of the jury a fair and impartial statement of the various questions on which they are called to pronounce.

As this ease goes back for another trial, we deem it unnecessary to comment further on the charges.

Reversed and remanded.