Simpson v. State , 111 Ala. 6 ( 1895 )

McCLELLAN, J.

It is true the information or complaint upon which the appellant was tried and convicted in the circuit court does not conclude with the words “against the peace and dignity of the State;” but the omission of these words does not render the complaint insufficient, in such manner as not to supports verdict and conviction thereunder. — Thomas v. State, 107 Ala. 61.

There is no merit in the position taken by defendant in denial of the solicitor’s right to embrace in the complaint a second count laying the property burned in Collins. The county court had the power to allow an amendment of the original affidavit by adding thereto a charge that the barn alleged to have been burned was the property of said Collins; and in formulating the complaint in the circuit court the solicitor but followed this amended affidavit upon which the trial was had in the county court, except in the unimportant particular of concluding “against the peace and dignity of the State.” Besides were this otherwise, it could not avail the appellant as now presented. The rulings of the court on this question should be shown- by the record proper in the circuit court, and should have been certified here as a part of that record. Appearing here only in the bill of exceptions, we cannot pass upon them.

Evidence of the contents of a structure alleged to be a corn crib was held admissible in Brown v. State, 52 Ala. 345, apparently only for the purpose of showing that the structure was a “house” or “building” within section 3784 of the Code (§ 3699 R. C.). That the structure here burned was a house or building was fully and clearly shown without any reference to its contents.; and we are unable to see what office the fact that there was a considerable amount of personal property, including live stock, corn, cotton, etc., in this barn when it was burned, had to perform in the trial below, unless it was the illegitimate one of inducing the jury to measure the punishment by reference to the amount of property destroyed.

When the question is whether the accused had a motive for destroying property, facts which, afford ground for a reasonable inference tojb© drawn by the jury of ill will on the part of the accused toward the owner of the property are admissible for the consideration of the jury. We are clear in this case that the facts that the defendant went'to Beavers, the owner of the place on which the barn was located, some time before the burning— but how long before is nob stated — to rent the place, which was then occupied by Collins, and was told by Beavers that Collins had the refusal of the place, afforded no ground whatever for a reasonable inference on the part of the jury that accused burned the barn ; and this evidence should not have been allowed to go to the jury.

The court properly excluded from the jury the proposed evidence as to two blood hounds, of the same breed of those employed to track the supposed criminal in this case and trained by the same man, being put upon the trail of a human being and leaving it to trail a sheep which they overhauled and killed. The test by comparison was not sufficiently certain to determine the reliability of the dogs employed hereby reference to the qualities of the other dogs.

Without undertaking to determine and declare that the charge given ex mero motu by the'Court in writing was free from error, it is entirely safe to say that there are propositions in each one of the sixteen paragraphs, into which the appellant has divided it for the purpose of reserving exceptions to each of such paragraphs, which are entirely sound expositions of the law ; and no more than this need be said in holding all these exceptions ill taken.

Reversed and remanded.