Cunningham v. State , 117 Ala. 59 ( 1897 )

BRICKELL, C. J.

A demurrer to the first indictment having been interposed and sustained, and the defendant having declined to consent to an amendment of the indictment, the court was authorized to “order another indictment to be preferred at the same, or at a subsequent term.” — Code of 1896, §4918, ( Code of 1886, § 4390). It Is of no consequence that the order, as first made, directed that the new indictment be preferred at the next term, and that the court, on the succeeding day of the-term — the defendant being present — changed the order so as to direct the second indictment to be preferred at the then present term. The power and authority of the court to so change its order cannot be doubted. We do not wish to be understood, however, as assenting to the proposition that the validity or regularity of the order holding the defendant to answer a second indictment is pertinent to any issue presented in the trial upon the second indictment, no question of former jeopardy, nor of the statute of limitations intervening. — Code of 1896, § § 5067, 5075.

The granting or refusal of the application for a continuance is left to the sound discretion of the trial court, and its action thereon is not revisable by this court.— DeArman v. State, 77 Ala. 10; White v. State, 86 Ala. 69; Walker v. State, 91 Ala. 76; Lowery v. State, 98 Ala. 45; Carr v. State, 104 Ala. 4.

The objection interposed by the defendant to the admission in evidence of the certified transcript of the charter of the Louisville & Nashville Railroad Co. was purely technical and without merit.

The remarks of the solicitor, made in reply to the argument of counsel for the ■ defendant, touching the dismissal of the prosecution against the witness Zeigler, if properly presented for review, are not subject to objection ; they were made as an argument or inference and not as the statement of a fact. — Hobbs v. State, 74 Ala. 39; Jefferson v. State, 110 Ala. 89.

The statute makes the willful burning of a warehouse arson in the second degree, if the property be of the value of five hundred dollars, or more ; if it be of less value than five hundred dollars, the offense is arson in the third degree. — Code of 1896, § § 4337, 4340; James v. State, 104 Ala. 20. The bill of exceptions contains no testimony tending to show the value of' the warehouse., the subject of the arson in this case, to have been of less value than five hundred dollars, hence charge numbered 1, requested by the defendant, was properly refused. Nor was the State required to prove the property to have been of the exact value alleged in the indictment. The testimony, without conflict, tending to show that the value of the warehouse alone was more than five hundred dollars, there was no variance between the allegation and the proof of value. Charge numbered 2 was, therefore, properly refused.

The indictment contains two counts, one alleging the ownership of the property to have been in the South & North Alabama Railroad Company, the other alleging it to have been in the Louisville & Nashville Railroad Company. Such joinder of counts, made with the view of meeting any phase of the testimony, the offenses charged being of the same family of crimes, is a practice which has long been sanctioned by this court. If, in such case, the testimony tends to develop separate and distinct offenses, the court will require the prosecution to elect on which offense a conviction is claimed. — 3 Brick. Dig. 268, § § 242-3; Butler v. State, 91 Ala. 87; Tanner v. State, 92 Ala. 1; Rollins v. State, 98 Ala. 79; Upshur v. State, 100 Ala. 2. The charge numbered 3, requested by the defendant, was properly refused ; its tendency being to restrict the jury to the first count in the indictment when no cause for an election by the prosecution had been presented and no election had been required by the court.

Charges numbered 4 and 5 are argumentative, invasive .of the province of the jury, and were calculated to confuse and mislead. .

In Carter v. State, 103 Ala. 93, it was held error to refuse a charge requested by the defendant in the following words : “Unless each of you is convinced beyond a reasonable doubt of the guilt of the defendants, from the evidence in the case, then you should not convict them.” In Goldsmith v. State, 105 Ala. 8, a charge that “if any one of the jurors has a reasonable doubt of the guilt of the accused, they must acquit him,” was held properly refused; the law not requiring an acquittal of the defendant because one or more of the jurors may not be legally convinced of his guilt. Asimilar charge was held properly refused in Pickens v. State, 115 Ala. 42. Charge numbered 7, requested by the defendant in the present case, is as follows : “If there be one juryman who believes the State has not proven the defendant guilty beyond a reasonable doubt, and to a moral certainty, then this juryman should not consent to a verdict of guilty.” Aside from the inartificial manner in which the charge is drawn, it is vicious in that it is calculated to impress the mind of a .juror with the idea that his verdict must be reached and adhered to without the aid of that consideration and deliberation with his fellow jurors which the law intends shall take place in the jury room.

The general charge was properly refused.

Affirmed.