Ethridge v. State

• Decision Date: 31 January 1900
• Citation: 27 So. 320,124 Ala. 106
• Parties: ETHRIDGE v. STATE.
• Court: Alabama Supreme Court

27 So. 320

124 Ala. 106

ETHRIDGE v. STATE.

Supreme Court of Alabama

January 31, 1900

Appeal from circuit court, Pike county; John P. Hubbard, Judge.

Henry Ethridge was indicted, tried, and convicted of arson in the second degree, and was sentenced to the penitentiary for two years, and appeals. Reversed.

On the trial of the cause there was introduced evidence tending to connect the defendant with the commission of the offense charged. One of the witnesses for the state testified that on the day after the fire he discovered large, barefooted tracks in a field near the house which was burned, which tracks pointed in the direction of the place where the barn had stood, and came from the direction of where Henrietta Clemens, one of the witnesses for the state, lived. The defendant objected to this evidence, moved to exclude the same from the jury, and duly excepted to the court's overruling said motion. The facts relating to the introduction of this evidence are sufficiently stated in the opinion. It was shown by the state that the defendant and his wife had separated, and that, upon the afternoon before the house was burned at night, the house burned had been rented to the defendant's wife. One Henrietta Clemens, a witness for the state, testified that, about sundown of the afternoon before the fire at night, the defendant came to her house and was barefooted; that while there he talked with his son Jim Ethridge; and that Jim Ethridge told the defendant that Elisha Leverett had told him (Jim Ethridge) that he had rented to defendant's wife the house that was burned. This witness further testified that the defendant went into her house and hunted for some matches, and that, finding none, he asked her daughter for some, and that upon being given the matches he went away, in a great hurry, in the direction of the house that was burned. The defendant introduced evidence tending to prove an alibi, and tending to show that he did not commit the offense charged. The bill of exceptions recites that in his argument before the jury the solicitor for the state, in commenting on the testimony stated, substantially, "that the defendant should have had Jim Ethridge present to testify that Elisha Leverett had not told him that defendant's wife had rented the house that was burned, and that he had not told his father [defendant] so at Henrietta Clemens' on the evening before the house was burned, if such was the fact." The bill of exceptions then recites that the defendant asked the court to give to the jury the following written charge, and duly excepted to the court's refusal to give the said charge as asked: "(4) The fact that the defendant did not have Jim Ethridge present as a witness to contradict the testimony of Henrietta Clemens to the effect that Jim Ethridge told the defendant, at her house, that Elisha Leverett had rented to defendant's wife the house alleged to have been burned, is not matter for legitimate comment by the solicitor, and the jury cannot consider it in making up their verdict." The defendant requested the court to give to the jury the general affirmative charge in his behalf, and duly excepted to the court's refusal to give the same as asked.

D. A Baker, for appellant.

Chas. G. Brown, Atty. Gen., for the State.

McCLELLAN C.J.

There was evidence tending to show that the defendant had large feet ...