Cobb v. State

• Decision Date: 15 January 1924
• Docket Number: 6 Div. 442.
• Citation: 100 So. 463,20 Ala.App. 3
• Parties: COBB v. STATE.
• Court: Alabama Court of Appeals

100 So. 463

20 Ala.App. 3

COBB v. STATE.

6 Div. 442.

Court of Appeals of Alabama

January 15, 1924

Rehearing Denied Feb. 5, 1924.

Appeal from Circuit Court, Lamar County; R. L. Blanton, Judge.

Rollie Cobb was convicted of arson in the first degree, and appeals. Reversed and remanded.

A. H Carmichael, of Tuscumbia, J. C. Milner, of Vernon, and Tillman, Bradley & Baldwin and John S. Stone, all of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., B. G. Wilson, Sol of Demopolis, O. E. Young, Deputy Sol., of Vernon, and W. F Finch and J. M. Pennington, both of Jasper, for the State.

SAMFORD J.

The first count of the indictment charges the defendant will burning a storehouse of D. W. Lewis & Son, of the value of $500. Count 2 is as follows:

"The grand jury of said county further charge that before the finding of this indictment, Rollie Cobb, whose name is to the grand jury otherwise unknown, willfully set fire to and burned a store, the property of Cobb & Cobb, a partnership composed of Rollie Cobb, and Richard Cobb, by the burning whereof there was burned a store, which, with the property therein contained, was of the value of $500 or more, the property of D. W. Lewis & Son, a partnership composed of D. W. Lewis and J. A. Lewis, whose names to the grand jury are otherwise unknown, against the peace and dignity of the state of Alabama."

To the second count defendant filed demurrers, on grounds: That the intent to burn the property of Lewis & Son is not alleged; that it is not alleged that the property of Lewis & Son was adjacent to the property of Cobb & Cobb; that it is not alleged that the burning of the Cobb store would probably result in burning the Lewis store. None of these allegations were necessary. The crime denounced is the willful burning of certain property named in the statute. The ownership of the property is of no moment, except as a mere matter of description. Granison v. State, 117 Ala. 22, 23 So. 146. Nor is the intent to burn the adjacent building necessary to be alleged. The intent applies to the building willfully burned. The indictment is sufficient.

The proof of the corpus delicti and of the guilty agency of defendant was dependent upon the testimony of Troy Wilson, who admitted setting fire to the store of Cobb & Cobb, of which firm defendant was a member. Wilson testified that defendant employed him, at the price of $50, to burn the store, telling witness to meet him (defendant) behind the buildings on the night of the tire. When the two met according to agreement, a little after 12 o'clock, defendant told witness he was going back to the house and would come back in his car and unlock the store and gas tank and "leave a bucket setting there." Defendant also said he would come without lights. Witness then testified:

"In a little bit the car come down like he said it was coming drove up there to the store over there. The car didn't have any lights on it as it come down. *** It stopped out near the gas tank in front of the store. I know it was done the way he said he would do. *** The gas tank was unlocked and the door was unlocked and a bucket sitting there. I saw somebody get out."

In connection with the fact that defendant was one of the active managers of the store and had access thereto, the testimony of J. A. Lewis, that "Around midnight, just before I started home, there was a car drove up in front of Cobb &amp Cobb's store. There was a person in that car. *** I think it was a Dodge Car. *** I noticed only the lights were out when it drove up, and it went away with the lights out. When the person got out there, he stopped at the tank, or made a racket at the tank like he was filling the car and left the car sitting at the tank and went in the store on the further side, and stayed in the store 10 or 15 minutes, and come out and got in the car and drove off with the lights off until he got about even with the Key place and turned them on"-was sufficient corroboration of the testimony of the witness Wilson to authorize its submission to the jury. It was also competent to prove any unusual solicitousness on the part of defendant, immediately preceding the fire,...