Childress v. State , 86 Ala. 77 ( 1888 )

CLOPTON, J.

The indictment charges, that the accused “willfully set fire to, or burned a house used as a prison, which was at the time occupied by Alfred Phillips, who was lodged therein, and the ownership of which is unknown to the grand jury.” It was found, and the defendant convicted, under section 3780 of the Code of 1886, which declares: “Any person who willfully sets fire to, or burns any steamboat, or vessel, in which there is at the time any human being, or any prison or jail, or any other house or building, which is occupied by a person lodged therein, or any inhabited dwelling-house, or any house adjoining such dwelling-house, whether there is, at the time, in such dwelling-house', any human being or not, is guilty of arson in the first degree.” Whether the offense charged in the indictment is arson in the first degree, is to be determined from the facts averred as to the character of the structure, and the circumstances of the burning.

It is objected, that the indictment fails to state the facts which are essential to constitute the offense intended to be charged. The specified objections are: (1.) That the averments do not show, with the degree of certainty required in criminal pleadings, that the structure alleged to have been burned comes within either of the classes specifically defined in section 3780; (2.) That the indictment does not sufficiently allege that the house was occupied by a person lodged therein. The first objection is founded on the idea, that it was intended to charge the specific act of burning a prison. On this assumption of the legal effect and meaning of the indictment, it is contended, that the words used as a prison are not the equivalent of an averment that the structure was in fact a prison. The contention arises from a misconception of the purposes and scope of the statute, and the purport of the indictment. At common law, the offense is regarded as an offense peculiarly against property and its possession. In defining arson in the first degree, and prescribing the penalty, the statute has special reference to the protection of human life. — Davis v. State, 54 Ala. 357. It enlarges the subjects of arson, and extends them beyond those which the offense was considered, at common law, to reach. It not only designates particular hinds of structures, but, by comprehensive language, includes any house or building, not of the specified kinds, “which is occupied by a person lodged therein,” without respect to the uses to which it may be otherwise appropriated. The words, used as a prison, were not employed as an allegation of the fact necessary to a conviction of the offense. They are merely descriptive, employed to identify the house burned, the ownership being unknown. They are surplusage. Without them, the indictment charges arson in the first degree, substantially in the words of the statute. A house or building, whatever may-be its character or use, if occupied at the time of the burning by a person lodged therein, comes within the statutory definition.

An indictment for arson, under a statute which aggravates the offense because there is a person in the structure burned, must aver the fact, in order to charge the aggravated crime. It is contended, that the present indictment does not allege that the house burned was. occupied at the time by a person. The averment is, “which was occupied at the time by Alfred Phillips, lodged therein.” The form of an indictment for arson in the first degree prescribed by statute, uses the words “in which there was at the time a human being.” But the indictment need not strictly pursue the words used in a statute to define an offense; words conveying the same meaning are sufficient. — Code, 1880, § 4370. The use of a name applicable to, and representing a human being, to designate any object, is equivalent, prima facie, to an allegation that the „ object so designated is a person. The averment of the indictment, in this respect, conveys the same meaning as the words used in the statute to define the offense.

2. The defendant further complains, that he was denied his constitutional right to have compulsory process for obtaining witnesses in his favor. The object and meaning of the constitutional guarantee is, that the court will exercise its powers, by the processes -usual aud known to the law, to compel the attendance of witnesses on behalf of the accused. It does not operate to take from the court the discretion as to granting or refusing continuances, or the authority to adopt proper means for ascertaining whether an application for a continuance is made with the view of obtaining a fair trial, or for the mere purpose of delay. The defendant had previously obtained the issuance of subpoenas for his witnesses, which is the ordinary preliminary process to secure their attendance. Extraordinary cumpulsory process, such as attachment, is not resorted to, until the witness has placed himself in contempt, and the propriety and the necessity of the process is shown. The court is not borind to order an attachment, ex mero motu, on the failure of a witness to appear in answer to the subpoena. It is not shown that the defendant asked for an attachment, or other compulsory process. Had he done so, it is manifest that the court would have granted his application; for attachments were ordered to be immediately issued against the same witnesses, on the application of the prosecuting solicitor. Neither does it appear that any showing was made, that the witnesses were not absent by the procurement or consent of defendant. Under the circumstances, we can not say that the court disregarded the rights of defendant, by requiring him to put in writing what he expected to prove by the absent witnesses, and putting the State on the admission that they would so testify. — White v. State, ante, p. 69; DeArman v. State, 77 Ala. 10.

3. By the statute, ‘ ‘any fact which is unknown to the grand jury, and which is not an essential ingredient of the offense, may be so charged in the indictment.” — Code, 1886, § 4877. The ownership of the house having been affirmed in the indictment to be unknown to the grand jury, it was not incumbent upon the State to prove the fact. Such is the presumption, until the contrary is shown. The rule is, that the grand jury having affirmed therein that the ownership was unknown to them, the indictment will support a conviction, unless it is shown that the fact was known to the grand jury. Proof of the ownership before the petit jury, or that it could .have been ascertained by reasonable diligence, does not authorize the acquittal of defendant. — Duval v. State, 63 Ala. 12.

4. The defendant further claims, that the court erred in refusing to instruct the jury, at his request, that the state-merits made by Mm, of Ms innocence of the charge, which were brought out by the State on the examination of the State’s witnesses, “are evidence to be considered by them, just as any other evidence in the case.” The charge would import to the jury, that they were bound, as matter of law, to give to the defendant’s declarations of innocence the same weight they give to the other evidence. Declarations, made at the same time, must be received as a whole; those which criminate, and those which exculpate. The jury should neither reject, nor give credence, capriciously; but they-are not bound to give credence equally to every part. It is their province to weigh the declarations of the accused, and determine what portions they believe, on a consideration of the time, occasion, and circumstances under which they were made, the motive which operated on the defendant, and their .consistency or inconsistency with the other credible evidence. The charge was calculated to mislead, and would have invaded the province of the jury. — McKee v. State, 82 Ala. 32.

5. The defendant further complains, that the court erred in refusing to charge the jury, that before they can convict, the State must prove, beyond a reasonable doubt, that the house burned was used as a prison, and that it was not sufficient if the proof shows that it was used as a corn-crib by the owner, and that he gave the officers permission to put prisoners in the house. The law undoubtedly requires, that the guilt of the accused shall be fully proved, and that every ultimate and essential fact necessary to conviction shall be established beyond a reasonable doubt. The rule, however, does not require that every circumstance, offered in evidence, and each fact which may aid the jury in reaching the conclusion of guilt, shall be clearly proved. The reasonable doubt, which calls for an acquittal, must arise on the whole evidence. The law exacts a conviction, if the jury are satisfied, on weighing the entire evidence, of the defendant’s guilt to a moral certainty. — Ming v. State, 73 Ala. 1. We have said, that the expression, used as a prison, is merely descriptive, and as such may not be entirely rejected. Being descriptive, it involves a question of variance; and it is sufficient if the proof reasonably satisfies the jury that the house was so used. It is a fact, or circumstance, which may aid the jury in reaching a conclusion as to the identity of the house;, but, not being a fact essential to conviction of the offense charged in the indictment, the State is not required to prove it beyond a reasonable doubt, and the defendant is not entitled to an acquittal unless the State makes such quantum of proof of the fact.

6. The defendant further requested the court to charge the jury, that the State must prove, beyond a reasonable doubt, that Phillips was alive at the time of tbe burning. In view of the evidence, which indisputably shows that he was alive when he was put in the house, a few hours prior to the time it was burned, the jury would have understood the charge as instructing that the State must prove, by positive and direct evidence, that he was alive at the precise time when the house was set on fire. The charge would have authorized the jury to infer his death within a few hours, despite the absence of any evidence rebutting the presumption in favor "of the continuance of life, which presumption casts the onus on the party affirming its extinction.

7. The statute declares that a conviction of felony can not, be had on the testimony of an accomplice, unless corroborated by other evidence, tending to connect the , defendant with the commission of the offense. — Code, 1886, § 4476. Before corroboration can become a condition of conviction, the jury must be reasonably satisfied that the witness was an accomplice. The record fails to disclose any evidence showing that the witness, Eoote, was an accomplice; and if he was, it shows that his testimony was corroborated by other evidence tending to connect the defendant with the commission of the offense. — Ross v. State, 74 Ala. 532; Bass v. State, 37 Ala. 439.

8. The defendant further complains, that the counsel for the State, in addressing the jury, transgressed the limits of legitimate discussion, and that the court failed, to interfere. A presiding judge is called on to perform a most delicate and responsible duty, when required to interfere with the freedom of argument, which is the privilege of counsel. Much must be committed to his sound discretion, as to the course and character of the debate, which should be allowed on the trial of a case, whether civil or criminal. When, however, there occurs an unwarranted abuse of the privilege, it becomes the imperative duty of the judge to restrain and rebuke, and, by positive and explicit instructions, disabuse, as far as practicable, the minds of the jury of any prejudicial impression. If, on objection being made, he fails to do so, such failure will work a reversal of the judgment, if injustice to the accused is the probable result. It is both the duty and the right of counsel to present the case of his client as fully and forcibly as the evidence, its tendencies, and the inferences therefrom, may justify. Within these limits, the widest range, of discussion should be accorded; but appeals to the prejudices, not pertaining to the case, and not based on the tendencies and inferences of the proof, should be discountenanced by the courts, and the administration of the law protected against discredit and debasing influences.

With a proper regard for the privilege of counsel, and the value of legitimate debate, in the ascertainment of truth, this court has declared, that counsel keep within legitimate bounds, when, on the one hand, they invoke the mercies of the law, and the benefit of reasonable doubts, and, on the other, urge a fearless and unflinching administration' of the criminal law, avoiding all gross ánd unwarranted vituperation, abuse, and appeals to prejudice. In order that a statement may come within the rule which prescribes the limits of fair discussion, “the statement must be made as of fadj the fact stated must be unsupported by any evidence, must be pertinent to the issue, or its natural tendency must be to influence the finding of the jury.” — Cross v. State, 68 Ala. 476; Com. Fire Ins. Co. v. Allen, 80 Ala. 571. A careful examination of the record fails to show that the statements of the counsel, made in the opening argument to the jury, fall within the rule. They may be somewhat harsh, made in the heat of debate, but they were not unsupported by the evidence. Counsel for defendant, in addressing the jury, referred to PhillipsbFamous Cases of Circumstantial Evidence, and to two cases which occurred, one in the county of the trial, and the other in an adjoining county. The remarks of the prosecuting counsel, in the concluding argument, which were objected to, appear to have been strictly in reply to this allusion of counsel for the accused. They were intended to fortify the jury against the influence of such considerations, and to urge a decision of the case according to the law and the evidence. It does not affirmatively appear that counsel abused their privilege, or that it was the duty of the court to interfere. Furthermore, the court instructed tbé jury, ex mero motto, that they must look to the testimony of the witnesses, and not to the statements of counsel, for the facts.

We have considered all the questions which counsel have deemed important and material enough to be urged in argument. We may remark, however, that we have carefully considered the other exceptions to the rulings of the court shown by the record, and find no reversible error.

Affirmed.