Stone v. State , 105 Ala. 60 ( 1894 )

McCLELLAN, J.

The indictment returned by the grand jury in this case charged that Tom Stone “willfully set fire to or burned a barn within the curtilage of the dwelling-house of Herbert Chase ;” and to this indictment there was a plea of not guilty,and a joinder of issue thereon. The case thus made up was presented to the jury, the evidence was adduced on both sides, and the jury were instructed by the court and retired to consider of their verdict, “when,” as is recited in the judgment, “it appearing to the court that there was a variance between the allegations and the proof in this : the indictment described the property as a barn within the curtilage of Herbert Chase and the proof showing it was • a barn within the curtilage of the dwelling-house of Dudley Powell, and the defendant consents that the indictment may be amended by describing-the .property willfully set fire to Or'burned as being a corn-crib,' the' personal property of Herbert Chase, or a barn within the curtilage of the dwelling-house of Dudley Powell. The State by its solicitor amends the indictment to meet said variance by adding these counts as shown by indictment filed in open court on 22d day of August, 1894, to which the defendant again pleaded not guilty,” upon which issue was joined &c. «fee. The bill of exceptions states that upon the development of a variance between the averments of the indictment and the proof in the particular referred to, the defendant consented “for the indictment to be amended so as to show that it was a corn-crib, instead of a barn, and that the corn-crib was the property of Dudley Powell that was burned, and that the barn was within the curtilage of the dwelling-house of Dudley Powell.” The consent of a defendant to the amendment of an indictment is his consent to the amendment of a matter of record, and should appear of record. Hence we must look to the judgment entry for the terms of this consent, and not to the bill of exceptions which is no part of the record in the court below. Under color of the consent shown by the judgment here “that the indictment may be amended by describing the property * * * * as being a corn-crib, the personal property of Herbert Chase, or a barn within the curtilage of the dwelling-house of Dudley Powell,” the solicitor was allowed by the court, against the defendant’s objection, to add four counts to the indictment *and to leave the indictment returned by the grand jury— constituting the first count in the indictment as amended — to stand without amendment. In these added counts it is charged, severally, that Tom Stone willfully set fire to or burned, first, “a bairn within the curtilage of the dwelling house ef Dudley Powell;” second, “a corn-crib of Dudley Powell containing at the time corn in ear;” third, “a corn-crib of Dudley Powell, in which at the time was contained corn in the ear, by the burning whereof a barn within the curtilage of the dwelling house of Dudley Powell was burned;” and, fourth, “a barn within the curtilage of the dwelling house of Dudley Powell by the burning whereof a corn-crib of Dudley Powell was burned, which contained at the time corn in the ear. ” Now the only one of -these four amendments which is covered by the defendant’s consent as stated in the judgment entry is the first, viz., “a barn: within the curtilage of the dwelling house of Dudley Powell.” There was no consent that the indictment should be amended so as to aver the burning of a corn.crib of Dudley Powell, or the coru-crib of either Powell or Chase, or anybody else, “containing corn,” or that by the burning of such corn-crib, or any corn-crib, a barn within the curtilage of Dudley Powell was burned, or that defendant burned a barn within the curtilage of Dudley Powell “by the burning whereof & corn-crib of Dudley Powell was burned, which contained at the time corn in the ear.” The only amendment with respect to a corn-crib covered by the consent had reference to a corn-crib "the personal property of Herbert Chase,” which was not made at all, and which if it had been made could be filled only by evidence of the burning of a corn-crib which belonged to Chase, but was situated on the land of another — these facts constituting the legal severance of the crib from the freehold essential to the ownership of the crib as personal property. Moreover, the consent was in effect that the amendment descriptive of the property should be substituted for the description contained in indictment as it came from the grand jury, thus wholly eliminating that description and with it the charge that the defendant burned a barn "within the curtilage of Herbert Chase;” and yet this was not done, but to the contrary, the defendant was put on trial for that alleged offense also. Many of the averments not covered by the defendant’s consent, if not all of them indeed, in the amended indictment were most material (Code, §§ 3781, 3784) ; but whether material or not the court should not have put him to answer them in the absence of his consent that they be set forth in the indictment. He was entitled to stand upon the very terms of his consent and to be absolved from defending against any charge in the original indictment which, according to those terms should have been eliminated, and also from defending against any new charge in the amendment not clearly authorized by those terms. See Code, §§ 4389, 4390; Gregory v. State, 46 Ala. 151; Johnson v. State, 46 Ala. 212; Ross v. State, 55 Ala. 177; The State v. Kreps, 8 Ala. 951.

The declarations of defendant and Aaron Hammond to Richardson that they burned Chase’s barn, were, in our opinion, shown to have been voluntarily made. They were under no sort of constraint, not having been arrested, or even accused of this or any other offense. They were not in the presence of a person in authority, for Richardson was not such person, and the proximity of Davis and Powell was wholly unknown to therm That the confession was gotten from them by the artifice and deception of Richardson in making them believe that he was in sympathy with the barn burners, and wanted to have some burning done on his own account, is no reason for its exclusion. — 1 Greenl. Ev., §§ 322, 323, 329 ; King v. State, 40 Ala. 314. And if it be true that the confession was induced by Richardson’s holding out the promise of employment to commit other arsons to the persons who burned Chase’s barn, yet this inducement involves only “a collateral benefit or boon,” and not the holding out of any hope or promise of favor in respect of that crime, and hence could not have the effect of rendering the confession of that offense involuntary. — 1 Greenl. Ev., § 229; McIntosh v. State, 52 Ala. 355; 3 Am. & Eng. Ency. of Law, pp. 455-6, 470.

The testimony of the witness Davis “that he heard Richardson say that Aaron Hammond told him the reason he burnt Chase’s barn was that his wages had been reduced” by the company of which Chase was an officer or the manager, “and that Stone had helped him do it,” was doubly hearsay. Had Richardson himself been the witness and deposed that Hammond had told him that defendant helped to commit the crime his testimony would have been patently inadmissible — a mere repetition of what a third person in the absence of the defendant had said as to the latter’s connection with the offense. And the illegality of the testimony as adduced was accentuated and emphasized by the fact that it was repeated at third hand by a witness who had heard Richardson repeat the statement made out of court by Hammond. The circuit court erred in- overruling defendant’s motion to exclude this testimony.

Taken in connection with the confessions made by Hammond and the defendant in the presence of each other, that they together burned the barn, evidence tending to show a motive on the part of either to commit the the crime ivas, in our opinion, admissible against both . The court, therefore, properly admitted the evidence going to show a cause of quarrel or ground of complaint which Hammond had against the owner of the property — that he had been in the employment of ihe owner and his wages had been reduced.

The bill of exceptions in .this case recites that it “contains all the evidence introduced on the trial of the cause.” It does not contain any evidence that the alleged offense was committed within the jurisdiction of the circuit court of Madison county : it does not appear that the burning was in Madison county. The affirmative charge requested by the defendant that, “if the jury believe the evidence in this case, they must find the defendant not guilty,” should, therefore, have been given Randolph v. State, 100 Ala. 139; Brown v, State, Ib. 92; Justice v. State, 99 Ala. 180.

Several of the charges requested by the defendant proceeded on the ill founded assumption that there was a failure of proof as to the corpus delicti, and were therefore properly refused. The testimony of Powell tended to show, and, if believed by the jury, did show that the barn was willfully set fire to and burned by some extraneous human agency, and the prima facie presumption of law is that the human agent was a legally responsible one. These considerations serve also to emasculate objections to the confessions of the defendant which were based on the idea that the intentional burning of the barn by a responsible agent — corpus delicti— had not been shown.

Other requests for instruction assert in variant forms that the absence of proof of motive on the part of the defendant to commit the crime charged would justify the entertainment by the jury of a reasonable doubt of his guilt, and authorize his acquittal. This is not the law. Proof of motive is not essential to conviction in any case] nor can it be said in any case that absence of such proof is ground for acquittal. Its existence is a circumstance to be considered by the jury in determining guilt or innocence along with all the other evidence adduced, and the non-existence of proof of it is likewise a circumstance which the jury may consider along with the other evidence in reaching a conclusion of innocence, but neither its presence nor absence can of itself be justly said to control the finding of the jury. Crimes may be and frequently are thoroughly established without any evidence ' of motive, and the very absence of motive may aggravate the offense.

Charges requested to the effect that “the jury can not look” to this evidence or that fact, or “may look” to certain evidence or to the fact that the State has failed to produce certain witnesses, &c., &c., were all properly refused, as has been many times declared by this court, because they are argumentative in a sense, and single out and give undue prominence to the facts proposed thus to be brought specially to the attention of the jury. E. T., V. & G. R. R. Co. v. Thompson, 94 Ala. 636; Bell v. Kendall & Co., 93 Ala. 489; Jackson v. Robinson, Ib. 157; Bancroft v. Otis, 91 Ala. 279; Waxelbaum v. Bell, Ib. 331; Brassell v. State, Ib. 45; Brantley v. State, Ib. 47; White v. Craft & Co., Ib. 139; Fountain v. State, 98 Ala. 40.

It is the court’s duty to determine the admissibility of confessions — whether they are voluntary or not — and it is the jury’s province and duty to weigh and consider them. The jury may upon a consideration of all the evidence disbelieve the confessions — they may discredit the statements made by the accused — but it is not open to them, after the court has determined that question, to find that they were not freely and voluntarily made, and, apriori, should they not be instructed to acquit the defendant “unless they are satisfied that the confessions were made freely and voluntarily, without inducements or persuasions,” as requested in this case. Confessions being before-the jury are competent evidence, and the jury may believe them and they may be absolutely true in point of fact, though the jury may also believe, and such may be, the further fact that they would not have been made but for the influence of hope or feai* excited in the mind of the defendant by inducements or threats held out or made by persons in authority. The jury may look to the circumstances under which the confessions were made to aid them to a conclusion as to their truth ; but even the conclusion by the j ury that they were not made voluntarily and freely would not of itself involve a disbelief of them.—Young v. State, 68 Ala. 569; Redd v. State, 69 Ala. 255; Long v. State, 86 Ala. 36; McGuff v. State, 88 Ala. 147.

'We have considered the propositions embodied in charges requested by the defendant with a view to another trial. There was only a general exception to them in bulk, and under the law as it existed at the time of the trial below, this would avail the appellant nothing unless each charge requested and refused should have been given.

The statute forbids comment in argument of a criminal cause upon the failure of the defendant to testify. — Code, § 4473. We construe both remarks shown by the bill of exceptions to have been made by the solicitor to be within the inhibition of the statute. But we cannot revise judgments here on account of the sayings and doings of counsel. We review only the action of nisi prius courts. To bring questions growing out of improper arguments of counsel under revision, the trial court must first be appealed to to remedy the wrong by eradicating any effect the argument may have had from the minds of the jury through appropriate instructions given them at the time and • otherwise. If the court fails to act upon such appeal being made to it, or acts erroneously, an exception reserved to the act or omission of the court, and that alone, will bring the question before us. In this case the exception reserved was to what the solicitor said, and not to what the court did or failed to do.

Reversed and remanded.