Benbow v. State

• Citation: 29 So. 553,128 Ala. 1
• Parties: BENBOW v. STATE.
• Decision Date: 15 January 1901
• Court: Supreme Court of Alabama

29 So. 553

128 Ala. 1

BENBOW v. STATE.

Supreme Court of Alabama

January 15, 1901

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Mary Mattie Benbow was convicted of an attempt to commit arson under an indictment for arson, and appeals. Affirmed.

On the trial of the case the evidence for the state showed that the house occupied as a dwelling by Pat Gibbons and his wife was set fire to by oil being poured on the latticework attached to the front porch, which was ignited. A police officer of the city of Montgomery testified that he arrested the defendant, and, without any threats or promises made by him the defendant confessed that she set fire to said house. The captain of the police force also testified to the confession. There was evidence for the defendant showing that at the time of the trial she was between 12 and 14 years of age. There was also evidence for the defendant tending to show that at the time the fire in question was discovered she was several blocks away from the house of Pat Gibbons, playing with some other children. The defendant testified that she made the statements testified to by the police officer under the influence of fear. The evidence showed that the latticework which was set fire was made of wooden strips, and was under the front porch of the dwelling house, and attached to it. There was some conflict in the evidence as to how far the burning had progressed before it was put out; some of it tending to show a substantial charring of the pieces of latticework, while some of the evidence tended to show that only the kerosene oil was burned, leaving the wood uninjured. The bill of exceptions contains the following recital as to the court's charge in reference to the law relating to the attempt to commit arson: "After the court had delivered its general charge to the jury, the defendant requested him to charge the jury upon the law of an attempt to commit arson. In complying with this request, the court charged the jury that an attempt to commit arson was a misdemeanor, and was punishable as other common-law misdemeanors. The defendant did not except to this charge nor did the solicitor make any objections, though present. The court then charged the jury that, in the event they found defendant guilty of an attempt to commit arson, the question of punishment must be decided; that, if they thought the proper punishment was a fine, they should assess one not to exceed $500, and, if they thought the proper punishment hard labor, they must return a verdict in this form: 'We, the jury, find the defendant guilty of an attempt to commit arson,'-and leave the punishment to the court. The defendant did not except to this charge; nor did the solicitor object to it, though present." At the request of the defendant the court gave to the jury the following written charge: "The terms 'set fire to' and 'burn,' as used in the indictment in this case are synonymous, and either term means that the house, or some part thereof, must be consumed by fire." After having given this charge, the court, at the request of the solicitor for the state, gave the following written charge to the jury "But, if the surface of any plank or part of the latticework of said house was charred by the flames, this is a destruction or consumption of a part of said house, within the meaning of the law." To the giving of this charge the defendant duly excepted, and also excepted to the refusal of the court to give to the jury the following written charge: "I charge you, gentlemen of the jury, that the law presumes a person between the ages of 7 and 14 years incapable of committing crime; and evidence to overcome this presumption must be...