Cheatham v. State , 59 Ala. 40 ( 1877 )

MANNING, J.

— The demurrer in this cause seems to have been ore tenus. None in writing is set out in the record. The judgment-entry recites: “The defendant interposes a demurrer to the indictment in this cause; which démurrer, being argued by counsel and understood .by the court,” was overruled. We must infer that the objection thus made was to the whole indictment, which consists of three several counts, the last of which is in the language of the form for arson in the second degree prescribed by the Code, and must therefore be held to be sufficient.

In regard to the objection to two of the State’s witnesses, that they were infamous, and therefore incompetent, the general rule of tire common law was, that such disqualification to testify as a witness was produced only by a conviction and judgment for treason, felony, or some one of the offences belonging to the class generally described as crimen falsi;- and what these are, it is not easy in all cases to determine.

But the conviction and judgment spoken of must be in a State tribunal, for a violation of a State law, and not merely, as in this instance, for the violation of a town ordinance, and before a mayor or councilman of the town. The disqualification is established, not by the commission of the crime, or by the verdict merely of the jury against the proposed, witness, but by the judgment of the court thereupon. And a pardon of the convict would restore his competency to testify. But the pardon having this effect is that of the chief executive magistrate of the State; and his pardons are of offences only against the laws of the State. The Circuit Court, therefore, did not err in overruling the objections to the competency of the witnesses for the State in this cause.

But the jury, by their verdict, found the defendant guilty as charged in the first count only of the indictment; and it was for the offence so charged that the sentence sending her to the penitentiary was pronounced. "We have then to inquire, whether this sentence is authorized by law for the offence described in that count. The accusation is, that defendant wilfully set fire to or burned a cotton-house of Robert Haygood, within the curtilage of the dwelling-house of the said Robert Haygood, by the burning whereof the said dwelling-house was burned.”

This is not arson in the first degree, according to section 4346 of the Code of 1876; because it is not alleged that it was done in the night-time, or that there was at the time any human being in the dwelling-house. It is not arson in the second degree, as described in the latter part of section 4347, because it is not alleged in this first count, that the building was an inhabited dwelling-house. Is it the offence described in the preceding part of the same section ?

That is divided into three clauses separated by semi-colons, and followed by two more, which are separated from each other by a comma only, and is as follows: “ Any person who wilfully sets fire to or burns any church, meeting-house, court-house, town-house, college, academy, jail, or other building erected for public use; or any banking-house, warehouse, cotton-house, gin-house, store, manufactory, or mill, which with the property therein contained is of the value of five hundred dollars or more; or any car, train of cars, car-shed, cotton-house, or cotton-pen containing cotton, or corn-pen containing corn; or any barn, stable, shop, or office, of another person, within the curtilage of any dwelling-house, or other building, by the burning whereof any building hereinbefore .specified in this section, is burned,” &c.

The fourth of these clauses makes it arson in the second degree to burn or set fire to “ any barn, stable, shop, or office of another person,, within the curtilage of a dwelling-house;” and the fifth, immediately following, makes it a like.offence to set fire to or burn “ any other building, by the burning-whereof, any building hereinbefore specified in this section is burned;” that is, any building previously specified, the burning of which was thereby made arson in the' second degree. Now, nowhere before in that section was the burning of a dwelling-house declared to be that crime. The' word dwelling-house is previously used therein, only to designate the curtilage appertaining to it, which protects any barn, stable, shop or office therein; the act making it arson in the second degree to burn any of them so situated.

It is evident that the indictment in this cause was drawn under the erroneous idea that the fourth and fifth clauses of section 4347, separated only by a comma, constituted but one. The consequence is, that the first count does not charge any offence described in the section. It does not allege that, the cotton-house to which fire was set was, “with the property therein contained, of the value of five hundred dollars,” according to one clause, or describe it as “ containing cotton,” according to another. Nor is the structure, although alleged to be within the curtilage of a dwelling-house, a “barn, stable, shop, or office,” so situated.

The offence of the defendant was probably correctly set forth in the third count of the indictment; but as she was found guilty only as charged in the first, (which is equivalent to an acquittal on the other two,) the verdict did not authorize the judgment pronounced by the court. It must, therefore, be vacated and set aside. But, although the first count is not sufficient to charge, as it was evidently intended it should, arson in the second degree, it is good as an indictment for arson in the third degree. It charges the wilful burning or setting fire to a cotton-house, the property of another, and that is arson in the third degree, according to section 4348 of the Code of. 1876. See, also, Brown v. State, 52 Ala. 345.

Let the cause be remanded, that the judge may pronounce sentence for the offence of arson in the third degree — and the jDrisoner remain in custody until discharged by due course of law.