Daniels v. State , 12 Ala. App. 119 ( 1915 )

BROWN, J.

The burden was on the state to prove the ownership of the property alleged to have been burned as laid in the indictment.—Martha’s Case, 26 Ala, 72; Graham’s Case, 40 Ala. 659; Hannigan v. State, 131 Ala. 29, 31 South. 89.

There was no proof that the cotton house Avas the property of W. 0. Harrison, Sr., as alleged in the indictment. The only proof on this subject was the testimony of Sadie Bussell, who testified “that she lived at the Body place, owned by W. 0. Harrison, in 1910,” but the evidence nowhere shows, or tends to show, that the cotton house alleged to have been burned was on the Body place, or that the Harrison who owned the Body place was W. O. Harrison, Sr. For all that appears, W. C. Harrison, Jr., who testified as a witness in the case, owned the Body place. The fact that the cotton house was near the residence of the witness Sadie Bussell is not sufficient to afford an inference that the cotton house was on the Body place. If the defendant had called this omission in the evidence to the attention of the trial court, as required by the rule 35, circuit court practice, he would have been entitled to the affirmative charge as requested, unless the omission was cured by. the introduction of proper evidence, the allowance of which was within the discretion of the court.

“In arson the corpus delicti consists, not alone of a building burned, but also of its having been willfully fired by some responsible person. Burning by acciden tal and natural causes must be satisfactorily excluded, to constitute sufficient proof of the crime. This degree of proof, though requisite to a conviction, is not, however, antecedent and necessary to the admissibility of a con fession"—Winslow v. State, 76 Ala. 42.

When there is any evidence at all, even the slightest tendency, that the burning was by design, although there is other evidence showing or tending to show that it was accidental, this is sufficient proof of the corpus delicti, as affording a predicate for the admission of the defendant's confession.—Savage v. State, infra, 68 South. 498; Winslow v. State, supra; Granison v. State, 117 Ala. 22, 23 South. 146; Davis v. State, 141 Ala. 62, 37 South. 676; Smith v. State, 133 Ala. 150, 31 South. 806, 91 Am. St. Rep. 21.

In Winslow's Case, supra—“there was evidence” of “a fresh track in the lane leading from the road to the house; that this track and the track of the defendant corresponded; that the fire, when first discovered, was burning on the outside, about six feet from the ground, at a part of the house in Which there had been no fire during the night; that the fire occurred about midnight and spread so rapidly that only one bed and bedding were saved.”

On this predicate, the court said: “While there was some conflict in the testimony, and there was evidence tending to show that the burning may have been accidental, the evidence tending to show the corpus delicti is sufficient to lay a foundation on which to rest the admissibility 'of the confessions.”-Winslow v. State, supra.

The predicate in this case was lacking in one particular only. No evidence was offered tending to exclude the theory that the burning was accidental, and on another trial some proof of this character should be offered before the alleged confession of the defendant is received in evidence; that is, it should be shown, if it be a fact, that prior to- the discovery of the fire there was no fire near where the fire was first discovered that was likely to have communicated fire to the house. The court erred in overruling the defendant’s objection to the evidence tending to show a confession. It is no answer to this conclusion that no objection was made to the testimony of Croom as to the conversation occurring next morning after the fire, as it was necessary to show the conversation of the evening before to justify the admission of the last as a confession.—Jones v. State, 68 South. 690.

Evidence as to the defendant’s conduct after he Avas seen by the witness Scott under the mulberry tree Avas admissible, in connection with the other evidence in the case, as having some tendency to prove the corpus delic-ti and connect the defendant with the arson.

For the error pointed out, the judgment of the law and equity court must be reversed.

Reversed ajid remanded.