Faulk v. State

• Decision Date: 18 June 1929
• Docket Number: 4 Div. 438.
• Citation: Faulk v. State, 23 Ala.App. 213, 123 So. 104 (Ala. App. 1929)
• Parties: FAULK v. STATE.
• Court: Alabama Court of Appeals

123 So. 104

23 Ala.App. 213

FAULK v. STATE.

4 Div. 438.

Court of Appeals of Alabama

June 18, 1929

Appeal from Circuit Court, Pike County; W. L. Parks, Judge.

Fletcher Faulk was convicted of arson in the second degree, and he appeals. Reversed and remanded.

Farmer Merrill & Farmer, of Dothan, for appellant.

Charlie C. McCall, Atty. Gen., and J. W. Brassell, Asst. Atty. Gen for the State.

BRICKEN P.J.

The statute law of arson has been materially changed in this state by the passage and approval of an act, approved September 9, 1927. See General Acts of Alabama 1927, p. 552.

It affirmatively appears from this record, however, that the offense complained of in the indictment was committed prior to the passage and approval of the above amendatory act, and therefore the law prevailing at the time of the commission of the act complained of must govern as to this case.

This appellant, and another, were indicted for the offense of arson in the second degree, the specific charge being that the defendants named willfully set fire to or burned a barn the property of Jim Copeland. In the second count the same offense was charged, but the property (barn) was alleged to be that of the J. S. Carroll Mercantile Company, a corporation. The ownership may be laid in different persons in separate counts of the indictment. In the instant case the ownership was properly laid in Jim Copeland, as the undisputed evidence discloses he was the tenant in actual possession at the time.

Under the provisions of section 3290 of the 1923 Code, the willfully setting fire to or the burning of a " barn" constitutes the offense of arson in the second degree; and an indictment charging that the accused, naming him, willfully set fire to or burned a barn the property of _____, naming the person in possession, meets every requirement of law, and it is not necessary, as insisted by appellant, that the indictment should go further and aver that such barn was within the curtilage of a dwelling house. Nor is it necessary to aver that the barn with the property therein contained was of the value of $500 or more. The statute itself is clear on these questions. It expressly declares that the burning of a barn is arson in the second degree; the provisions as to value, and the curtilage of a dwelling house contained in the same section have obviously no reference to a barn, but refer only to the buildings named therein just before these provisions. Henderson v. State, 105 Ala. 82, 16 So. 931. The demurrer to the indictment was properly overruled, and other insistences of appellant in this connection cannot be sustained.

A barn is a building of distinctive character, and known as such to every one, and, as stated, to willfully set fire to or burn a barn renders the person or persons committing such act, guilty of arson in the second degree, and when such act affirmatively appears, under the required rules of evidence, the crime is complete, and the contents or value thereof is wholly immaterial and in no sense an element or ingredient of the offense and need not be alleged, nor is proof thereof upon the trial admissible. Simpson v. State, 111 Ala. 6, 10, 20 So. 572. In the instant case the evidence disclosed without dispute or controversy that the structure burned was a barn, the willfully setting fire to or burning of which constituted arson in the second degree without any reference to its contents. Over the objection and exception of the accused, the state was permitted to prove that the barn contained six mules, two hogs, corn, and hay, and that all this property was burned. The Simpson Case, supra, expressly holds this to be error; in that case the court said: "That the structure here burned was a house or building was fully and clearly shown without any reference to its contents; and we are unable to see what office the fact that there was a considerable amount of personal property, including live stock, corn, cotton, etc., in this barn when it was burned, had to perform in the trial below, unless it was the illegitimate one of inducing the jury to measure the punishment by reference to the amount of property destroyed."

The foregoing authority is directly in point here, and the court below must be declared in error as a result of the rulings complained of in this connection and to which proper exceptions were reserved. The statute provides that the decisions of the Supreme Court shall govern the holdings and decisions of this court. Code 1923, § 7318. We regard the point decided in the Simpson Case as being sound, but the writer deems the reasons given therefor as inadvertent, in that...