Childress v. State

Decision Date11 April 1889
Citation86 Ala. 77,5 So. 775
PartiesCHILDRESS v. STATE.
CourtAlabama Supreme Court

Appeal from circuit court, Madison county.

Richard Childress was indicted and convicted for arson, and appeals.

Oscar R. Hundley, for appellant.

T N. McClellan, Atty. Gen., for the State.

CLOPTON J.

The indictment charges that the accused "willfully set fire to or burned a house, used as a prison, which was at the time occupied by Alfred Phillips, who was lodged therein, and the ownership of which is unknown to the grand jury." It was found, and the defendant was convicted under section 3780 of the Code of 1886, which declares: "Any person who willfully sets fire to or burns any steam-boat or vessel in which there is at the time any human being, or any prison or jail, or any other house or building which is occupied by a person lodged therein, or any inhabited dwelling-house, or any house adjoining such dwelling-house, whether there is, at the time, in such dwelling-house any human being or not, is guilty of arson in the first degree." Whether the offense charged in the indictment is arson in the first degree is to be determined from the facts averred as to the character of the structure, and the circumstances of the burning.

It is objected that the indictment fails to state the facts which are essential to constitute the offense intended to be charged. The specified objections are (1) that the averments do not show, with the degree of certainty required in criminal pleadings, that the structure alleged to have been burned comes within either of the classes specifically defined in section 3780; (2) that the indictment does not sufficiently allege that the house was occupied by a person lodged therein. The first objection is founded on the idea that it was intended to charge the specific act of burning a prison. On this assumption of the legal effect and meaning of the indictment, it is contended that the words "used as a prison," are not the equivalent of an averment that the structure was, in fact, a prison. The contention arises from a misconception of the purposes and scope of the statute, and the purport of the indictment. At common law the offense is regarded as an offense peculiarly against property and its possession. In defining arson in the first degree, and prescribing the penalty, the statute has special reference to the protection of human life. Davis v. State, 54 Ala. 88. It enlarges the subjects of arson, and extends them beyond those which the offense was considered, at common law, to reach. It not only designates particular kinds of structures, but by comprehensive language includes any house or building, not of the specified kinds, "which is occupied by a person lodged therein," without respect to the uses to which it may be otherwise appropriated. The words "used as a prison" were not employed as an allegation of any fact necessary to a conviction of the offense. They are merely descriptive, employed to identify the house burned, the ownership being unknown. They are surplusage. Without them the indictment charges arson in the first degree, substantially in the words of the statute. A house or building, whatever may be its character or use, if occupied at the time of the burning by a person lodged therein, comes within the statutory definition.

An indictment for arson, under a statute which aggravates the offense, because there is a person in the structure burned, must aver the fact, in order to charge the aggravated crime. It is contended that the present indictment does not allege that the house burned was occupied at the time by a person. The averment is, "which was occupied at the time by Alfred Phillips, who was lodged therein." The form of an indictment for arson in the first degree, prescribed by the statute, uses the words, "in which there was at the time a human being." But the indictment need not strictly pursue the words used in a statute to define an offense; words conveying the same meaning are sufficient. Code 1886, § 4370. The use of a name applicable to and representing a human being, to designate any object, is equivalent, prima facie, to an allegation that the object so designated is a person. The averment of the indictment, in this respect, conveys the same meaning as the words used in the statute to define the offense.

The defendant further complains that he was denied his constitutional right to have compulsory process for obtaining witnesses in his favor. The object and meaning of the constitutional guaranty is that the court will exercise its power by the processes usual and known to the law to compel the attendance of witnesses on behalf of the accused. It does not operate to take from the court the discretion as to granting or refusing continuances, or the authority to adopt proper means for ascertaining whether an application for a continuance is made with the view of obtaining a fair trial, or for the mere purpose of delay. The defendant had previously obtained the issuance of subp nas for his witnesses, which are the ordinary preliminary process to secure their attendance. Extraordinary compulsory process, such as attachment, is not resorted to, until the witness has placed himself in contempt, and the propriety and the necessity of the process are shown. The court is not bound to order an attachment, ex mero motu, on the failure of the witness to appear in answer to the subp na. It is not shown that the defendant asked for an attachment or other compulsory process. Had he done so, it is manifest that the court would have granted his application, for attachments were ordered to be immediately issued against the same witnesses on the application of the prosecuting solicitor. Neither does it appear that any showing was made that the witnesses were not absent by the procurement or consent of defendant. Under the circumstances, we cannot say that the court disregarded the rights of defendant, by requiring him to put in writing what he expected to prove by the absent witnesses, and putting the state on the admission that they would so testify. White v. State, (Ala.) 4 South Rep. 598; De Arman v. State, 77 Ala. 10.

By the statute, "any fact which is unknown to the grand jury and which is not an essential ingredient of the offense, may be so charged in the indictment." Code 1886, § 4377. The ownership of the house, having been affirmed in the indictment to be unknown to the grand jury, it was not incumbent upon the state to prove the fact. Such is the presumption, until the contrary is shown. The rule is that, the grand jury having affirmed therein that the ownership was unknown to them, the indictment will support a conviction, unless it is shown that the fact was known to the grand jury. Proof of the ownership before the petit jury, or that...

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57 cases
  • Smith v. State
    • United States
    • Alabama Supreme Court
    • 1 June 1916
    ...in the attempt to deduct inferential facts or intents from testimony in proof." See, also, Hobbs v. State, 74 Ala. 39. In Childress v. State, 86 Ala. 77, 5 So. 775, it declared that, in argument to the jury, counsel for the prosecution may urge a fearless administration of the law, commenti......
  • Gaddy v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 26 May 1995
    ...and the inferences therefrom may justify. Within these limits, the widest range of discussions should be accorded. Childress v. State, 86 Ala. 77, 5 So. 775 [ (1889) ]. " 'The rule in this state is well established and has been often cited. It is as follows: "The statement must be made as o......
  • Jarvis v. State
    • United States
    • Alabama Supreme Court
    • 25 January 1930
    ...p. 25, extend to "ordinary process" or subp na for witnesses and proper showing therefor if absent and not in contempt. Childress v. State, 86 Ala. 77, 5 So. 775; Walker v. State, 117 Ala. 85, 23 So. 670; v. State 123 Ala. 1, 10, 26 So. 949; Martin v. State, 125 Ala. 64, 28 So. 92. The fact......
  • Lacy v. State
    • United States
    • Alabama Court of Appeals
    • 11 February 1915
    ... ... true bill is found is the fact that justifies the averment of ... unknown particular description. Jones v. State, 115 ... Ala. 67, 22 So. 566. But the state is not required to prove ... this [13 Ala.App. 241] negative averment. Childress v ... State, 86 Ala. 77, 5 So. 775 ... Charge ... 85 was properly refused, because it ignores count 31 of the ... indictment and the tendencies of the evidence supporting this ... Charge ... 48 invades the province of the jury, and also singles out and ... gives undue ... ...
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