Colvin v. State, 6 Div. 68.

• Citation: 32 Ala.App. 142,22 So.2d 544
• Decision Date: 23 January 1945
• Docket Number: 6 Div. 68.
• Parties: COLVIN v. STATE.
• Court: Alabama Court of Appeals

22 So.2d 544

32 Ala.App. 142

COLVIN v. STATE.

6 Div. 68.

Alabama Court of Appeals

January 23, 1945

Rehearing Denied March 27, 1945.

Reversed by Supreme Court June 7, 1945.

E. L. Dodson, of Tuscaloosa, for appellant.

Wm. N McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty Gen., for the State.

RICE Judge.

Appellant was convicted of the offense of arson in the first degree and his punishment fixed at imprisonment in the penitentiary for the term of two years. Code 1940, Title 14, Section 23.

It is without dispute that a dwelling house belonging to appellant was destroyed, or partially destroyed, by fire on the morning (about 2:15 a.m.) of Thursday, August 13th, 1943.

As the learned trial court stated the matter in his oral charge to the jury:

'Now, in this case, Gentlemen, the State claims that this defendant owned a house out on 38th avenue, I believe it is, and 9th street in the City of Tuscaloosa. The State claims that he had insurance on the house in the amount of $800.00. The State further claims that shortly before the fire he procured insurance in the amount of $600.00 on the furniture in the house; and, the State further claims that some of this furniture didn't belong to him. That he only owned an interest in other furniture, but that he procured insurance in the amount of $600.00 on this furniture in his own name. The State further claims that the burning of the house was of incendiary origin. That is, that it was set by some person; that it was not an accident and that it was set and that this defendant was in close proximity to the place a few minutes before it burned. The State further claims that the defendant had made threats shortly prior to this time to sell (we are sure this was intended to be burn) the house unless the wife would sign the mortgage or deed and let him sell it. The State further claims that this defendant had taken his clothes and radio and, I think, some other property out of the house shortly before it burned and the State claims that he is guilty of intentionally--that is, with the intent to defraud, set this house afire or procured the burning of the house--aided or procured the burning of the house in order to defraud the insurance companies who were carrying the insurance on the house and the furniture.

'Now, on the other hand, Gentlemen, the defendant claims that he did not set it afire. He claims that he did not take his clothes out of the house with the intention of setting the house afire and that it was a mere accident that some of his clothes were out of the house. That he carried some of them to the cleaners and he further claims that he was not in the house any time after six o'clock on the evening before the house burned about two o'clock the next morning and he says he had nothing to do with the burning of the house. He says he was at the bus station in Tuscaloosa about the time the house burned and that he was not in that vicinity anywhere near the time the house burned and that he is not guilty of the crime.'

It is of course the law that 'in arson, the corpus delicti consists, not alone of a building burned, but also of its having been willfully fired by some responsible person, and burning by accidental and natural causes must be satisfactorily excluded, to constitute sufficient proof of the crime.' Carr v. State, 16 Ala.App. 176, 76 So. 413.

Here, the evidence that the burned building was 'willfully fired by some responsible person' consisted of the expert opinion given by E. L. (Pete) Mathews, the Chief of the Tuscaloosa Fire Department, who reached the scene of the fire an estimated approximately nine minutes after the fire began.

Mr. Mathews, who gave his qualifications as an expert as consisting of twelve years as chief of the Fire Department, and twenty-three years as assistant chief, and of his having investigated some thirty-five or forty fires of incendiary origin, was allowed to state--after detailing the aspects of the fire as observed by him--that it was his opinion that the fire--the burning of appellant's home--was of 'incendiary origin.' We think his testimony was properly admitted.

It is of course true that before an expert can state his opinion he must first testify to the facts on which the opinion is based--unless he is answering an hypothetical question. Brown v. Mobile Electric Co., 207 Ala. 61, 91 So. 802.

Stated another way, it is said: 'The general rule is declared that, where an expert opinion is called for based upon his own knowledge of the facts, the witness should first state the facts, then his opinion or conclusion. If not on his knowledge, then the question should be hypothetical, based on facts in evidence.' Blakeney v. Alabama Power Company, 222 Ala. 394, 133 So. 16, 18, citing Brown v. Mobile Electric Co., supra.

But it is also true that the qualifications of a witness to testify as an expert is a matter largely within the discretion of the trial court, and the appellate court will not reverse its ruling unless there has been an abuse of that discretion. Brown v. Mobile Electric Co., supra.

So we repeat: Under the authorities we have cited, there was no error in allowing Fire Chief Pete Mathews to state his expert opinion--basing it as he did upon facts observed by him--that the fire in question was of 'incendiary origin'--by which we know he meant it was 'maliciously set.'

There are many other rulings on the taking of testimony to which exceptions were reserved. We have examined each of them.

Perhaps in isolated instances the trial court was in technical error in some of these rulings. But appellant is represented here by able and aggressive counsel, who has filed a rather comprehensive brief in his behalf.

And said counsel has done no more than complain at some of said rulings. In no instance does he point out, under the law, where appellant was injured in any way by same.

In fact, able counsel disposes of the whole matter in this language: 'All these questions and answers are very similar in character, and constitute one gross error by the trial court in the submission to the jury as legal evidence such unreasonable and prejudicial circumstances, as to make impossible a fair trial. The prosecution proceeded on a gradual illegal and prejudicial build up.'

Answering the distinguished counsel, we remark that our careful scrutiny of each exception reserved discloses that the ruling underlying same did not, in our considered opinion, exercise the slightest effect on the verdict returned by the jury.

As appellant's counsel so well says: 'The evidence, all of it, and practically every detail of it, is purely circumstantial.'

This being true, it of course followed that, taking the wide range allowed, there might, here and there, have been a technically erroneous ruling, involving some matter of minuscule importance--exercising, as we said, no conceivable bearing upon the verdict returned by the jury. Naturally, the State's testimony, being so developed, assumed the form of a 'prejudicial'--though we do not think illegal--'buildup.'

And we come now to the real contention that appellant, through his counsel--though it was our duty to examine same regardless of counsel, Code 1940, Tit. 15, Sec. 389--urges upon us as a reason for the reversal of the judgment of conviction: That is, that the evidence failed to make a case against...