James v. State

• Citation: 104 Ala. 20,16 So. 94
• Parties: JAMES ET AL. v. STATE.
• Decision Date: 01 August 1894
• Court: Alabama Supreme Court

16 So. 94

104 Ala. 20

JAMES ET AL. v. STATE.

Supreme Court of Alabama

August, 1894

Appeal from city court of Selma; J. W. Mabry, Judge.

Giller James, John Brown, and Dow Williams were convicted of arson and appeal. Reversed.

At the January term, 1892, of the city court of Selma the grand jury preferred the following indictment: "The grand jury of said county charge that before the finding of this indictment Lee Mack, Giller James, John Brown, Dow Williams, and Wes Ethridge willfully set fire to or burned the ginhouse of A W. Coleman. The grand jury of said county further charge that before the finding of this indictment Lee Mack, Giller James John Brown, Dow Williams, and Wes Ethridge willfully set fire to or burned a mill of A. W. Coleman, which said mill, with the property therein contained, was of the value of three thousand dollars." Wes Ethridge moved for a severance which was granted, and the appellants, Giller James, John Brown, and Dow Williams were tried together. Upon the trial of the cause the jury returned a verdict finding the defendants "guilty as charged in the indictment." The defendants thereupon made a motion in arrest of judgment as to the judgment rendered against them, on the following grounds: "(1) The first count in the indictment in said cause charges said defendants with arson in the third degree and the second count in said indictment charges them with arson in the second degree, and the jury rendered a general verdict of guilty against these defendants, and did not specify on what count of the indictment they found said defendants guilty. (2) The jury failed to assess any punishment against said defendants. (3) The court cannot ascertain from the verdict in this case whether the defendants should be sentenced for arson in the second degree or for arson in the third degree." This motion was overruled, and the defendants duly excepted.

On the trial of the case, as is shown by the bill of exceptions, A W. Coleman, who was introduced as a witness for the state, testified that in the year 1891 he owned a ginhouse and mill in Dallas county, and that the building and machinery together were worth $3,000; that on Monday night of the last week in August, 1891, his ginhouse and mill were burned; that the morning after the burning one Ike Kyser came to his house, and told him of the fire; and that, after having gone to the scene of the fire with the said Kyser, he went back in about an hour, and made an examination about his ginhouse. His testimony in this respect is thus stated in the bill of exceptions: "'I found a huddle of tracks at the forks of the road, a short distance from the ginhouse, and tracks leading from that place up to the ginhouse. At the door of the seed room I found five different tracks.' Here witness was asked whose tracks they were. Defendants objected, on the ground that the question called for the opinion or conclusion of the witness. The court sustained the objection. The court instructed the witness that he could describe the physical peculiarities of the tracks of defendants and of the tracks at the seed room. The witness further stated: 'I have very frequently seen the tracks of the defendants, Giller James, John Brown, and Dow Williams.' Witness here described the physical peculiarities of the tracks of each of the defendants. Witness was then asked what was the similarity between the tracks at the forks of the road and at the seed-room door. Defendants objected to this question, on the ground that it called for the opinion of the witness. The court overruled the objection, and the defendants excepted. Witness then stated that the peculiarities of the tracks at the huddle at the forks of the road and at the seed-room door were the same. He then described the physical peculiarities of the tracks at the huddle at the forks of the road, which had the same peculiarities respectively as the tracks of the defendants." This witness further testified that he was present at the former trial of this case, when there was a mistrial, and heard Bob Brown's testimony; that the said Brown was a witness for the state, and that he (witness) remembered his testimony. Brown was dead at the time of the present trial, having died since the former trial. This witness was then asked, "What was the testimony of Bob Brown?" Defendants objected to this question, on the ground that no sufficient predicate had been laid for the introduction of secondary evidence of the testimony of the deceased witness, and that it was not shown that the witness Coleman recalled the substance of the testimony of the witness Brown on the former trial. This objection of the defendant was overruled by the court, and the defendants duly excepted. The witness then stated: "I remember substantially all of the testimony of Bob Brown. He swore that he [Bob], Champ Powers, Lee Mack, and the defendants were hired by Wes Ethridge for $10 apiece to burn the ginhouse of A. W. Coleman. That on the Monday night in question Wes Ethridge gave him two jugs of kerosene oil; that they, Bob Brown, Lee Mack, Champ Powers, Giller James, and John Brown, went from the store of Wes Ethridge that night between 8 and 9 o'clock to the ginhouse; that he [Bob] stood off at a little distance, and watched while defendants John Brown and Giller James and the others went into the seed room, and fired the ginhouse; that defendant Dow Williams, who was in the agreement with Ethridge, came up about the time the fire started." Witness Coleman further testified: "Defendant Giller James made bond after he was arrested, and then he ran away. I had him rearrested and put in jail. He sent for me while he was in jail. I went to see him, and asked him if he sent for me. He said he did send for me by Jack Coleman. That Jack told him that I said that if he [Giller] would turn state's evidence, like Bob Brown, that I would let him off. I told him that I did not say anything of the kind; that he had shown his guilt by running away. Giller then said that Ethridge and Ike Kyser had run him off." Defendants objected to this evidence on the ground that it was irrelevant, incompetent, and, so far as it sought to show a confession, involuntary. The court overruled the objection, and the defendants excepted. Upon the cross-examination of the witness Coleman, after having stated that one Hardy testified on a former trial of the defendants, he was asked by the defendants, "What was his [Hardy's] testimony?" The state objected to this question, on the ground that no predicate had been laid for the secondary evidence of Hardy's testimony. The defendants offered to prove that a subpoena to this court had been issued for Hardy, returned "Not found;" that his whereabouts were unknown to defendants; that when last heard of he was in Birmingham, Ala.; that they asked the question for the purpose of proving what Hardy did swear on the former trial, and also for the purpose of testing the recollection of the witness. The court sustained the objection, and the defendants each excepted. One A. Hasselvander, a witness for the state, testified that about two weeks after the fire he came to see about building a ginhouse for Mr. Coleman, and examined the spot where the ginhouse formerly stood; that he found pieces of jugs that would make about two jugs, and that "they looked like they had been burned." The defendants objected to this statement of this witness that "they looked like they had been burned," on the ground that it was the opinion of the witness. The court overruled the objection, and the defendants duly excepted. The other evidence for the state tended to connect the defendants with the...