Henderson v. State

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAND, J.
• Citation: Henderson v. State, 105 Ala. 82, 16 So. 931 (Ala. 1895)
• Decision Date: 31 January 1895
• Parties: HENDERSON v. STATE.

16 So. 931

105 Ala. 82

HENDERSON v. STATE.

Supreme Court of Alabama

January 31, 1895

Appeal from circuit court, Covington county; J.M. Carmichael, Judge.

Indictment in three counts against Dan Henderson, charging in the first two counts arson of an uninhabited dwelling house, and the third count the arson of a cotton house containing cotton. From a conviction thereunder, defendant appeals. Affirmed.

Upon the introduction of all the evidence, the defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe all the evidence in this case, the defendant is not guilty of arson in the second degree." (2) "If the house alleged to have been burned was not [?] an unoccupied dwelling house within the meaning of the statute, the defendant is not guilty of arson in the second degree, unless the house, with its contents, is shown by the proof to have been worth five hundred dollars or more." (3) "Unless the jury believe from the evidence beyond a reasonable doubt that the defendant set fire to and burned an unoccupied dwelling house, or set fire to and burned a cotton house, which, with its contents, was worth five hundred dollars or more, then the defendant is not guilty, and the jury should acquit him." (4) "If the jury believe from the evidence that the house alleged to have been burned was built for and used as a dwelling house up to 8 or 10 years ago, and then its use as a dwelling house was abandoned, and it has not since that time been used or occupied as a dwelling house, or for people to live in, but has been used as a cotton house to store or keep cotton in, then it is a question for the jury to decide whether it was an unoccupied dwelling house or a cotton house; and if it was not an unoccupied dwelling house but was a cotton house, then the defendant cannot be convicted of arson in the second degree, unless the house with its contents, is shown by the proof to have been worth five hundred dollars or more."

Hickman & Riley and Henry Opp, for appellant.

Wm. C Fitts, Atty. Gen., for the State.

McCLELLAND J.

This indictment contains three counts. The first two charge arson of an uninhabited dwelling house. The proof was that the house was a small one-room structure, with a piazza along one side of it; that it had been built, and was at one time occupied, for the purposes of a dwelling, but that it had not been so occupied for eight or ten years last past; was at the time of the fire dilapidated, dismantled, and wholly unfit for habitation, and had been used for said period only for the storage of cotton. We are of opinion that on these undisputed facts it had wholly lost its character as a dwelling house, within the meaning of sections 3780 and 3781 of the Code; and that the conviction must be referred to the third count of the indictment, which avers the arson of a "cotton house containing cotton, *** which cotton house with the cotton therein contained, was of the value of five hundred dollars or more." The evidence showed that a cotton house containing...