Brown v. State , 79 Ala. 51 ( 1885 )

STONE, C. J.

The indictment charges that the defendant attempted, willfully and maliciously, to burn a house. — Code of 1876, § 4348. To burn such house willfully is a misdemeanor, and an attempt willfully to burn it is also a misdemeanor. The indictment charges the ownership of the house to be either in Fred Sloss or Macklin Sloss. Such form of averment is permissible under our statute — Code, § 4798 — and if either of the alternative averments be proved, this sustains the averment. The City Court did not err in holding the indictment good. Ward v. The State, 22 Ala. 16; Johnson v. The State, 35 Ala. 370.

The proof tended to show that the house was the property of Fred Sloss, Macklin Sloss and A. W. Smith. The statute, approved December 4, 1878 (Sess. Acts, 46), enacts, that “ when any property, upon or in relation to which the offense was committed, belongs to several partners or owners, it is sufficient to allege the ownership to be in any one or more of such partners or owners.” Under this statute, the variance betweeu the averment and proof of ownership was immaterial. The first charge asked by defendant was rightly refused.

For the defense it was sought to prove by defendant himself, while giving his testimony, that he went to the house, not for the purpose of setting fire to it, but to get some whiskey. This was rightly ruled out. A witness, testifying for himself, is not permitted to give evidence of his own uncommunicated motives or intents.—Burke v. The State, 71 Ala. 377; Whizenant v. The State, Ib. 383; Stewart v. The State, 78 Ala. 436. Charges two and three were rightly refused, because each of theni referred to this rejected testimony, as part of the hypothesis on which it was based.

In refusing charges four and five asked by defendant, and in the charge given by the court of its own motiou, the City Court did not err. What the impeaching witness swore Reuben Davis had previously told him, was admissible solely for the purpose of impeaching Reuben Davis. For all other purposes it was unsworn hearsay.

The judgment of the City Court is affirmed.