Lee v. State

• Decision Date: 25 May 1937
• Docket Number: 6 Div. 37
• Citation: 27 Ala.App. 568,176 So. 828
• Parties: LEE v. STATE.
• Court: Alabama Court of Appeals

176 So. 828

27 Ala.App. 568

LEE v. STATE.

6 Div. 37

Court of Appeals of Alabama

May 25, 1937

Rehearing Denied June 15, 1937

SAMFORD J., dissenting.

Appeal from Circuit Court, Jefferson County; J.Q. Smith, Judge.

C.W Lee was convicted of arson, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Lee v. State, 176 So 832.

Jim Gibson, of Birmingham, for appellant.

A.A. Carmichael, Atty. Gen., and Clarence M. Small, Asst. Atty. Gen., for the State.

RICE Judge.

We will accept just as written by his resourceful attorney appellant's own statement of the case presented, to wit:

"The appellant, C.W. Lee, was indicted for arson and was convicted under count 2 of the indictment. It was the contention of the state that the appellant, C.W. Lee, burned the house in which he was a tenant for the purpose of defrauding the insurance company who carried the fire insurance on appellant's furniture and personal effects; the appellant denied this and contended that he and his family were at a motion picture show at the time the house burned; there were no eyewitnesses to the burning of the house, but the state introduced in the evidence a purported confession, alleged to have been made by the appellant, which appellant testified that he signed same because his wife and children were threatened. The state's testimony, with the exception of the alleged confession, was made out purely by circumstantial evidence and defendant's witnesses strenuously controverted the issue, and numerous people testified as to the appellant's good character."

Said count 2 of the indictment followed the form outlined in Code 1928, § 3289, and was sufficient against demurrer.

Proof that appellant occupied the house alleged to have been burned as tenant--not owner--met the requirements of the law; to the end that appellant was not entitled to have the jury given at his request the general affirmative charge to find in his favor as for a variance between the allegata and probata--the said count 2 of the indictment having charged that appellant "willfully set fire to or burned *** a dwelling house, the property of himself." (Italics ours.) Johnson v. State, 1 Ala.App. 148, 55 So. 268; Id., 1 Ala.App. 151, 55 So. 445. As was said by the then Presiding Judge Walker, in the opinion in the first of the cases just cited: "Under our statutes, as was the case at the common law, arson is an offense against the possession, rather than the property."

The exceptions reserved on the taking of testimony appear to us so clearly without merit as to need no detailed discussion.

The issues were properly, fairly, and under correct instructions by the court, submitted to the jury for its decision. The evidence amply supported its finding.

The most, as we read the record, the only, serious question presented arises out of the action of the learned trial judge which we will now discuss.

The bill of exceptions recites the following, to wit:

"Before the argument to the jury by the state and defense counsel, defense counsel tendered to the court 25 written requested charges. And the court limited defense counsel to 12 charges, that he would consider in the case; 12 charges were selected by defendant's attorney, and were tendered to the court and passed on by the court. The court refused to consider or pass on the other 13 charges under the court rules of the Tenth judicial circuit of Alabama, allowing the court to limit the number of written charges. The court refused to limit (consider) or sign said thirteen written charges 'given' or 'refused.' The defendant in open court and in the presence and hearing of the Jury, at said time, duly and legally excepted to the ruling of the court in refusing to consider separately and severally the 13 written charges.

"The rule of the court hereinabove referred to is as follows:

" 'The trial court may limit parties to a reasonable number of such charges.' Said rule was regularly adopted at a regular meeting of the judges of the Tenth judicial circuit of Alabama on February 7, 1936. ***

"One of the 12 charges selected by defense counsel and submitted to the court in compliance with the court's ruling limiting defense counsel to 12 charges, which was duly requested in writing by defense counsel in the presence and hearing of the jury is as follows: '25.' The court charges the Jury that before the alleged confession could be considered legal evidence against this defendant in this case, it must have been made voluntarily by the defendant and not as the result of fear, promises, or hope of reward. And I further charge you, gentlemen of the Jury, if you believe that the defendant signed the alleged confession involuntarily and by reason of the officers statement to him, that his wife and children would be put in jail, if he did not. Then, gentlemen of the Jury, you should not consider said alleged confession in reaching your verdict in this case.

"The trial court failed or refused in passing on said written requested charge, to mark some 'given' or 'refused' and the only mark said trial court showed on said charge, is as follows: 'J.Q. Smith, Judge.' "

It was, of course, error on the part of the court to decline to consider and indorse "given" or "refused" the written charges mentioned in the first of the two excerpts we have quoted from the bill of exceptions. Kiker v. State (Ala.App.) 172 So. 288.

But as was well said by Bricken, P.J., in the opinion in the case of Jerry Collins v. State (Ala.App.) 176 So. 219, "Certainly erroneous charges requested by defendant and not passed upon could not avail the defendant in any manner." In this Jerry Collins Case the written charges requested, and which the trial court refused to pass upon and indorse either "given" or "refused," were embodied in the bill of exceptions, with an exception noted to each such refusal (i.e., refusal to consider the charge). In such situation Judge Bricken, for the court, very properly, we yet think, proceeded to examine each of said charges with a view to determining whether or not the undoubted error on the part of the trial court was or was not prejudicial to appellant.

Here, only one of the written charges which the trial court declined to pass upon is set out in the bill of exceptions. An examination of this charge reveals that the trial court would have been under no duty to give it, even if he had considered it, this for the reason that the substance of said charge was amply covered by and included in other written charges given at appellant's request, in connection with the trial court's oral charge--assuming, only for the purpose, that said written charge was not defective.

As for the other written charges mentioned in the first of the two excerpts we have quoted from the bill of exceptions, they, not appearing in the bill of exceptions, as was the case in Jerry Collins v. State, supra, and not being indorsed "given" or "refused," are not before us for any purpose. Kiker v. State, 233 Ala. 448, 172 So. 290. And this is true even though there appears on a page in the transcript of the record, proper, a number of purportedly "written charges," unindorsed in any way, under a general caption at the head of said pages, as follows, to wit: "Charges presented by defendant and not ruled on by the court."

Said written charges not being before us, we are, of course, unable to say that the declination of the court to pass upon them--or upon any one of them--"probably injuriously affected substantial rights" of the defendant (appellant). In which event we are, of course, forbidden to order a reversal of the judgment of conviction therefor.

Some confusion seeming apparent in this matter of "requested written charges" in the circuit courts--especially in Jefferson county (the circuit court in no other, so far as we are advised, having undertaken to adopt a rule limiting the number of same)--we will here undertake a summary or epitome of what this court, in connection with, and by the approval of, the Supreme Court, lays down as the law governing, to wit:

(1) It is error for the trial court to refuse to govern itself by the provisions of Code 1923, § 9509--"rule," or no "rule." Kiker v. State, supra; L.B. Porter v State (Ala.App.) 174 So. 313; James Ed Glenn v. State (Ala.App.) 174 So. 315; response by Supreme Court to certification by Presiding...