Hale v. State

101 So. 774, 20 Ala. App. 270, 1924 Ala. App. LEXIS 280

• Court: Alabama Court of Appeals
• Decided: August 19, 1924
• Docket: 7 Div. 925.
• Status: Published

Opinion

FOSTER, J.

The defendant was convicted of arson in the second degree. The evidence for the state was directed to showing that on Sunday night, October 16, 1921, a gin-house and its contents, valued at about $1,500, belonging to J. M. Ballard, was set fire to and burned; that there had been no fire about the gin that day; that persons passing just after dark saw no fire; that the defendant was seen that afternoon on the road which led to the gin; that he pulled off his shoes on the side of the road; that the fire was discovered 'about 7:30 o’clock at night;, that two men’s tracks, one wearing shoes, and one barefooted, were found going to and from the gin; that the defendant’s foot fitted the barefoot track; that the defendant had been told tbat Ballard was going to put bim in tbe penitentiary for selling mortgaged property, and defendant bad stated that Ballard might put him in the penitentiary, hut it w’ould not he for selling mortgaged property; that the defendant had made threats that the ginhouse would not stand for that season. The defendant’s evidence tended to show that he did not burn tbe ginhouse; tbat be was not there on that Sunday; that be was with some boys all the afternoon, and about an hour before sundown be went to tbe bouse of Bud Hale, and then to Buchanan’s bouse, where he remained until 8 or 9 o’clock, and until after the ginhouse was burned.

Upon direct examination, one Co-field, a witness for tbe state, testified tbat tbe “defendant’s foot fit tbe track snugly.” Where tbe evidence elicited is not patently and palpably illegal and irrelevant, a general objection will not avail the defendant. The evidence was relevant and material, no ground of objection was specified, and the court did not err in overruling tbe objection. On a prosecution for arson, testimony tbat a man’s barefoot track was discovered leading in tbe direction of, and back away from, tbe burned building, and tbat the defendant’s foot fitted the track, was admissible. Gamble et al. v. State, 19 Ala. App. 590, 99 So. 662.

State’s witness, Tom Garrett, testified tbat on a certain occasion before the burning, one Buchanan, in the presence of the witness, said something to the defendant about a bale of cotton, and tbat the defendant said, “If Mr. Ballard gets the bale of cotton, be will lose more than he will gain.” Evidence of a dispute between accused and the injured party about a bale of cotton, and threats or declarations in tbe nature of threats by the accused before tbe offense charged, were admissible to show a motive for tbe burning. Gamble et al. v. State, supra.

Jim Emory, a witness for tbe state, testified:

“He [defendant] and Ballard had a little quarrel. He said, if he dug coal, it would not be for selling mortgaged property.”

The state’s solicitor asked the witness to “state what they said to Hale that he was answering.” The answer was:

“They told him Mr. Jim Ballard would have him digging coal for selling mortgaged property.”

The following then appears in the hill of exceptions:

“Defendant’s counsel said: I object to the answer.

“The Court: Overruled.

“Defendant’s Counsel: We except.

“Witness: He said, if Mr. Jim Ballard had him digging coal, it would be for something else-besides selling mortgaged cotton.

“Defendant’s Counsel: We move to exclude it, on the ground that it is irrelevant, incompetent, immaterial, and illegal testimony to any issue in this case, and except to the ruling of the court.

“The Court: If I change my ruling, it will be later.” ,

Tbe record fails to show any objection to tbe question in each case. After answer the objection was too late. However, tbe evidence was relevant as tending to sbow a, dispute between the accused and tbe injured party about tbe sale of mortgaged cotton,' and to sbow a motive for tbe burning. Gamble et al. v. State, supra. i

Charge 2 was faulty and was properly refused. ' It required an acquittal, if any member of tbe jury had a reasonable doubt of tbe guilt of tbe defendant. It omits tbe word “doubt,” and for tbat reason also its refusal was proper. It is evident it was intended to write “doubt” into tbe charge, but we cannot supply tbe omission.

Tbe general affirmative charge for the defendant was properly refused, as there was ample evidence to justify the verdict of guilt.

The record fails to disclose error, and the judgment of the circuit court is affirmed.

Affirmed.