James v. State , 104 Ala. 20 ( 1893 )

HEAD, J.

If, as contended by appellants, the indictment sufficiently charges a misdemeanor in one count, and a felony in another, judgment could not be lawfully pronounced upon a general verdict of conviction thereon, for the obvious reason that the court could not know what punishment to impose. Each of the offenses being sufficiently charged, there would be no reason for referring the conviction to one charge rather than the other; and the punishments prescribed by law for the several offenses being entirely different, it could not possibly be known what sentence to pronounce. Hence it is that such an indictment is entirely bad on demurrer for misjoinder, and if a trial and conviction are had thereon, in the absence of demurrer, unless the- verdict itself ascertains the offense of which the prisoner is convicted, judgment will be arrested on motion. — Adams v. State, 55 Ala. 143. As said in that case, “to. authorize the joinder there must be a concurrence in the nature of the offense, the mode of trial and the character of punishment.” The rule is well settled, that if the indictment contains a good and a bad count, the defendant will be put to his demurrer. A general verdict of conviction in such case, will be referred to the good count; hence judgment will not be arrested. The bad count will, on motion in arrest, be disregarded. — Rowland v. State, 55 Ala. 210; Glenn v. State, 60 Ala. 104; May v. State, 85 Ala. 14; Hornsby v. State, 94 Ala. 55. The second count of the present indictment, with all necessary averments, charges the statutory offense of arson in the 2d degree,.which is a felony, punishable by imprisonment in the penitentiary. Is the first count good and sufficient as a charge of arson in the 3d degree, which is only a misdemeanor, punishable by a fine and imprisonment in the county jail, or at hard labor for the county? The Attorney-General contends that it is a defective charge of arson in the 2d degree, advantage of which should have been taken by demurrer ; the contention, on the other hand, of appellants being, as we have seen, that it is good and sufficient as a charge of arson in the third degree, and, considered alone, not demurrable. The charge in this count is that the defendant set fire to, or burned, .the gin house of A. W. Coleman. The degree of arson, whether second or third, which the law ascribes to the burning of a gin house, is determinable by the value of the house and the property therein contained. If of the value of $500, or more, the offense is in.the second, otherwise, the third degree. The count under consideration, (the first count), does not allege the value. The authorities seem to leave no room for discussion of the question here presented. The case of Brown v. State, 52 Ala. 345, settled that an indictment, in principle, like the count we are considering, was good, on demurrer, as a charge of arson in the third degree ; and that case was followed in Cheatham v. State, 59 Ala. 40. Since these decisions were rendered, a form of indictment for arson in the 3d degree has been prescribed and introduced into the schedule of forms in the Code of 1886, (See Cr. Code, p. 267), wherein the allegation is inserted that the arson was committed under such circumstance as did not constitute arson in the first or second degree; but we do not accord to this form the force of law further than is required by section 4899 of the Code, which merely provides that the forms prescribed, in all cases in which they are applicable, are sufficient; and analogous forms may be used in other cases. If, under the general law, considered apart from the form, the indictment is sufficient, it will be so held. The result is that the first count of the present indictment is good, as a charge of arson in the third degree, which is a misdemeanor; and being joined with a count for arson in the second degree, which is a felony, the verdict can not be referred to either, and the motion in arrest of judgment should have been sustained.

There was no error in overruling defendant’s objection to the question put to State’s witness, Coleman : ‘ ‘What was the similarity between the tracks at the forks of the road and at the seed room door?” The objection to it was that it called for the opinion of the witness. We think in cases of this kind, where many, and often indescribable, peculiarities and characteristics are to be considered in ascertaining the identity of a thing', a witness who saw these peculiarities and had the means of forming a correct conclusion, may testify to the identity, as a collective fact.

There is clearly no merit in the objections to proof of the testimony of the deceased witness, Bob Brown, given on the former trial of this cause.

The objections to that portion of A. W. Coleman’s testimony concluding with the words, “Giller then said that Etheridge and Ike Kyser had run him off, ’ ’ were too general. Much of the testimony, to say the least, to which the objections were referable, was competent and legal, and if the objections had been sustained that testimony would have been excluded.

Manifestly, no sufficient predicate was laid for the admission of the testimony of the witness, Hardy, on the former trial, and the court committed no error in so holding. — Lucas v. State, 96 Ala. 51.

There was no error in permitting the witness, Hasselvander, to testify that the pieces of jugs found in the debris of the burned gin-house or mill looked like- they had been burned. It was such an opinion as a.witness’ may give, and its materiality was shown by other evidence.

The exceptions to the two charges given at the instance of the State are not well taken. It is too evident to admit of doubt, that there was no purpose or effort in either of these charges, to define the measure of proof necessary to justify a conviction, and the jury could not have been misled by them, on that subject. The point of the charges is, that the case of Wes. Etheridge had nothing to do with this trial; and their meaning and substance are that if this offense is made out against these defendants they should be convicted, without regard to any influence it might have on the case of Etheridge, or whether Etheridge had anything to do with the burning or not. No one, reading the charges, and ascribing to them their plain, ordinary meaning, would ever suppose they were intended to authorize conviction upon a less measure of proof than is sufficient to satisfy the jury beyond a reasonable doubt.

. The jury may have believed from the evidence that the .gin-house might, by possibility, have been carelessly or negligently or accidentally burned, yet the evidence may have been such that they were satisfied beyond a reasonable doubt that such was not the case, but that the defendants willfully burned the same. The third charge requested by defendants is not consistent with, this principle. Moreover, it is argumentative and calculated to mislead.

The fourth charge requested by defendants is so incomplete we can not consider it. Its references to extrinsic matter are such as to be unintelligible, without some further explanation which the record fails to furnish.

Charges 9 and-14 are arguments merely.

-Eor the error mentioned the judgment of the city court -is reversed and the cause remanded.. Let the prisoner . Remain in custody until discharged by due course -of law.

■ Ké'versed and- remanded.