Cunningham v. State

• Decision Date: 30 June 1915
• Docket Number: 308
• Citation: 69 So. 982,14 Ala.App. 1
• Parties: CUNNINGHAM v. STATE.
• Court: Alabama Court of Appeals

69 So. 982

14 Ala.App. 1

CUNNINGHAM v. STATE.

No. 308

Court of Appeals of Alabama

June 30, 1915

Rehearing Denied Oct. 4, 1915

Appeal from City Court of Gadsden; James A. Bilbro, Judge.

Mark Cunningham was convicted of arson, and he appeals. Affirmed.

The objections to evidence, together with the tendencies of the evidence, sufficiently appear from the opinion. The house alleged to have been burned was the property of Will Thompson, and it appears from the evidence that early in the year before the burning defendant had been indicted for petit larceny, and that Will Thompson, together with others, was summoned before the grand jury, and testified against defendant. The court permitted the state to show that among other things said by defendant was that he knew all who appeared against him, that Thompson was said to have a still in his barn, and that defendant would go to the barn as soon as the protracted meeting got to going good and see if the still was there, and, if so, he would notify the sheriff, and they would go and arrest Thompson.

The following charges requested by defendant were refused:

(B) The evidence in this case against defendant is circumstantial, and before you can find defendant guilty on such testimony, you must believe from the evidence beyond a reasonable doubt and to a moral certainty that he willfully set fire to and burned the house of Thompson, and that no other person could have done the act.

(C) Before the jury can convict defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with defendant's guilt, but that it is wholly inconsistent with every other rational conclusion, and unless the jury are so convinced by the evidence of defendant's guilt that they would each venture to act upon that decision in matters of highest concern and importance to their own interest, then they must find defendant not guilty.

(D) If you would not be willing to act upon the evidence in this case if it was in relation to matters of most solemn importance to your own interest, then you must find defendant not guilty.

(E) Affirmative charge, as was charge F.

(G) The court charges the jury that if, upon a consideration of the whole evidence, you find any material part of the testimony of a given witness was willfully false, then it is the duty of the jury to disregard his testimony entirely.

(H) If there is one single fact proven in this case inconsistent with defendant's guilt, that is sufficient to create a reasonable doubt and entitle him to an acquittal.

Charges I and J are charges as to the weight and effect to be given to evidence as to footprints in the absence of some peculiar mark.

(K) If, from the whole evidence, you should reach the conclusion that the tracks testified to by witnesses as those of defendant were the tracks of defendant, but have a reasonable doubt as to whether such tracks were made on the night of the burning, then you should acquit defendant.

As originally framed, the verdict read:

We, the jury, find defendant guilty as charged in the indictment, and set punishment at ten years.

W.J Boykin, of Gadsden, and Robert F. Lusk, of Guntersville, for appellant.

W.L Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

PELHAM P.J.

The defendant was tried on an indictment charging an offense punishable capitally (arson in the first degree), and made a timely motion to quash the special venire on the ground that the copy of the venire served on the defendant did not conform to the order of the court and contain the names of the regular jurors drawn and summoned for the week the case was set for trial, as was required by the order of the court made in compliance with the statute. The point seems to be that, while the list showed that the jurors were drawn, it does not appear from the list that they were summoned.

The ground of the motion is not sustained by anything set forth in the record. On the contrary, the order of court required the venire to consist of 100 names, 47 of which were to be the names of the regular jurors drawn and summoned for the week, and 53 special jurors drawn for the purpose of completing the venire. The copy of the venire served on the defendant is shown to consist of the proper number of names and contains the names of 47 persons as being the regular jury for the week, and 53 names as the names of the persons constituting the special venire. The return of the sheriff states that, in pursuance of the order of the court, he served on the defendant a list of the names of the regular jurors drawn and summoned for the week of the trial, together with a list of the names of the special jurors drawn by the court for the trial of the defendant. There is nothing to contradict the return of the sheriff, which, as an official act, prima facie imports verity as to the facts stated in it. Hale v. State, 10 Ala.App. 22, 64 So. 530. The return in this instance shows a compliance with the order of the court made pursuant to the statute.

The evidence connecting the defendant with the commission of the offense with which he was charged was circumstantial, and on the trial of the case the state was allowed, over the objection of the defendant, to show the character of footprints found near the scene of the crime shortly after it was committed, and their correspondence with those made by the defendant, and that they led in the direction of the home of the accused, as evidence admissible in going to identity in pointing out the defendant as the perpetrator of the crime.

The state was allowed to show, without objection on the part of the defendant, that the footprints found near the scene of the burned house went in the direction of and near to the defendant's home, and that similar barefoot tracks were found in the defendant's back yard that night or the next morning after the burning of the night before. The contention of the defendant is that the court was in error in several instances in permitting the witnesses who saw and examined tracks made by the defendant at or about the same time to testify, against defendant's objection, that the tracks were similar or alike, or corresponded in appearance and compared as being the same size in width and length. It was not shown that any of the witnesses testifying on this subject had themselves taken or seen others take actual measurements of the tracks, but it did appear that they had observed the tracks critically, with a view of noting their general character and appearance with respect to each other for the purpose of making a comparison. It was held in a very recent decision of the Supreme Court, considering the admissibility of "track evidence," that the statement of a witness that the length of two mule tracks was the same, although the witness had been unable to get an exact measurement of the heel, was competent evidence to go to the jury for what it was worth. Brindley v. State, 69 So. 536, rendered June 3, 1915. As a fair example of what the witnesses were permitted to testify to in the instant case, we quote the following:

"The width seemed to be pretty much the same in both tracks." The tracks were "about the same size." They "appeared to be about the same size." They "compared in length and all and shape." They "compared pretty well in size and length and width and toes and heel. *** They compared in width, toes, and size." "They looked exactly alike."

It does not seem to us that the admission of this evidence was violative of the rule against the acceptance of the opinion or conclusion of a witness, but that it was rather a descriptive statement of a fact made from personal observation. Certainly it would be admissible under the rule laid down in Brindley's Case, supra, and Pope's Case as reported in 174 Ala. 63, 57 So. 245, and does not offend against the rule declared in Pope's Case, as reported in...