McDonald v. State , 165 Ala. 85 ( 1910 )

McCLELLAN, J.

— Conviction of arson in the second degree. The evidence presented required the submission of the issue of defendant’s guilt vel non to the jury. There was testimony tending to show, through the correspondence of tracks about the scene of the fire with the shoe of the defendant, that defendant had, previous to the fire, been about the place. There was testimony tending to reflect upon the truth of the defendant’s assertion that his first knowledge of the fire came through a woman who occupied the same house he did, and to impeach the defendant in respect of his visit, while the house was burning, to a neighboring dwelling. There was, also, testimony tending to establish ill will on defendant’s part toward H. N. Crouch, wTho was the superintendent of the plantation on which the burned building was. Additional to this, it Avas shoAvn that dogs trained to take the scent of human beings followed a trail from the scene of the fire, after parley, through the house of defendant. It was for the jury to say whether, from all the facts and circumstances before them, the defendant was the incendiary.

One accused of crime may shoAV his own innocence by proof of the guilt of another; but the evidence of the guilt of the other must relate to the res gestcee of the event- — the perpetration of some deed entering into the crime itself. — Levison v. State, 54 Ala. 520, 527; Carlton v. People, 150 Ill. 181, 37 N. E. 244, 41 Am. St. Rep. 346; Owensby v. State, 82 Ala. 63, 2 South. 764. It is a necessary consequence of this doctrine that declarations by that other are not admissible for any purpose unless it be to affect his credibility as a witness on the trial. — Smith v. The State, 9 Ala. 990; Alston v. State, 63 Ala. 178. Where there is evidence tending to connect another with the commission of the crime with which the prisoner is charged, and the evidence adduced against the prisoner is circumstantial, the defendant may adduce any legal evidence tending to fix guilt of the offense on another and to show motive on that other’s part to commit the offense. — Tatum v. State, 131 Ala. 32, 31 South. 369; Walker v. State, 139 Ala. 56, 66, 35 South. 1011; Carlton v. People, supra.

It will be noted that a broad distinction, in respect of admissibility of evidence in this connection, is taken between matters merely hearsay, such as declarations, confessions, and flight, and evidence tending to connect, actually or circumstantially, including motive, another with the offense of which defendant is charged. Another’s motive is not primarily admissible, but is rendered so whenever there is evidence tending to connect that other with the criminal act. — Tatum’s Case, supra.

On the cross-examination of IT. N. Crouch, a state’s witness, he was asked this question: “Is it not a fact, Mr. Crouch, that you have recently had trouble with William Fletcher, prior to the burning, the man to whose house the dogs first carried the trail, and in whose barn the trail was abandoned?” The objection of the state was sustained. Up to this time the testimony, in respect of the conduct of the dogs about William Fletcher’s house, was: * * * Which (the trail) they carried first to the house of Will Fletcher, about half a mile from the fire. They entered said house and barked a number of times and jumped up on the bed and barked. They remained in the house of Will Fletcher a very short time, and then came on out of the same door they had entered and took up the trail where they had left ii to go into Fletcher’s house, and followed this trail to Dan McDonald, the defendant’s house, a short distance away. They entered this house and harked several times, going through said house and coming out another door from the one they entered. They followed this trail and went down into the pasture, a short distance away, and came hack from the pasture to the well between Will Fletcher’s house and Dan McDonald’s and went into Will Fletcher’s barn, and there the dogs were pulled off. * * * I had trouble with Dan McDonald, who was a tenant on the plantation, some time before this. I discharged him on Friday night before the burning.”

It thus appears that the basis for the asserted right to show Fletcher’s motive, inspired by ill will, for the commission of the crime, must be found in the conduct of the dogs when following the trail as stated.

There can be no doubt that, had Fletcher been on trial for this crime, the conduct of these dogs in trailing into his house, as described by the witness, and returning to his barn, where they Avere pulled off, avouM have been evidence for the jury of Fletcher’s guilt of the arson. It is true the witness asserts that the dogs returned to the trail. That was obviously a conclusion. He could not preclude the inference indicated by any such statement of Avhat he drew from the conduct of the dogs before him. It was open to inference, from the conduct of these dogs, that some one came from the scene of the fire, over the course followed by the dogs, entered Fletcher’s house, and came in contact Avith a bed therein. It was also open to inference that some one, taking the course to that point, passed Fletcher’s house, or, to state it otherwise, that one continued on while one entered. We intend to suggest no theory as sustained by this feature of the evidence, for this case, in all its aspects, is peculiarly for the jury’s consideration, without the slightest influence of this court, or that helow, on the issues of fact in it. But, in the light of the evidence indicated, we cannot avoid the conclusion that the conduct of the dogs, ivith respect to Fletcher and his abode, was sufficient to require the admission of the evidence tending to show the existence of a motive on his part.

There was no prejudicial error committed in the refusal of any of the special charges requested for defendant. Those numbered 2 and 4 were covered by given charges F and 18. That numbered 3 was faulty if for no other reason than that it uses the word “full,” before “belief,” thereby exacting too high a degree of certainty as a condition to a conviction. Charge 5, besides expressing an argument, was properly refused because it singled out one element of the evidence. Charge 9 was bad for like reasons. That numbered 6 invaded the province of the jury. It has other vices. The latter clause in charge 7 is unintelligible and was, hence, well refused. That numbered 8 is subject to the same criticism. Besides, the test it assumed to give is without legal sanction. Mitchell’s Case, 114 Ala. 1, 22 South. 71, states the test of the sufficiency of circumstantial evidence to justify a conviction. Charge 10 was covered, in substance, by given charge 22.

For the error indicated, we must reverse and remand.

Reversed and remanded.

Dowdell, C. J. and Mayfield and Sayre, JJ., concur.