Marsh v. State

• Decision Date: 28 May 1918
• Docket Number: 4 Div. 548
• Parties: MARSH et al. v. STATE.
• Court: Alabama Court of Appeals

80 So. 171

16 Ala.App. 597

MARSH et al. v. STATE.

4 Div. 548

Court of Appeals of Alabama

May 28, 1918

On Rehearing, June 29, 1918

Appeal from Circuit Court, Coffee County; A.B. Foster, Judge.

Sid Marsh and Rushing Marsh were convicted of arson, and they appeal. Affirmed.

R.H Arrington, of Montgomery, for appellants.

F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen for the State.

BROWN P.J.

In the absence of a motion for a severance by one of the defendants it was within the discretion of the trial court to proceed with the trial of the defendants jointly or severally. Wilkins v. State, 112 Ala. 55, 21 So. 56; Felder v. State, 9 Ala.App. 48, 64 So. 162; Code 1907, sec. 7842.

There is no merit in the defendant's objection that he was required to select a jury for his trial from the names on the venire other than the 12 jurors that were engaged in their deliberations in another case at the time. Trammell v State, 1 Ala.App. 83, 55 So. 431; Talley v. State, 174 Ala. 101, 57 So. 445; Patterson v. State, 171 Ala. 2, 54 So. 696.

The defendants were convicted of arson. The building burned was the residence of the state's witness Mink Lee. The litigated fact in the case is whether or not the defendants were responsible for originating the fire. The defendants offered evidence tending to show an alibi, while the evidence offered by the state tended to show that the defendants set fire to and burned the house, and at the time Lee's wife and two small children were in the house, having retired for the night; that they were compelled to leave the building in their night-clothes. The building and its contents, consisting of all the worldly goods possessed by Lee, were destroyed. Lee was examined as a witness, and testified that he had been away from home during the day, and on returning discovered some one shooting into his house; that the parties also shot at him, and soon thereafter the house burst into flames and was totally destroyed, with its contents. He stated on his examination in chief, among other things, that he saw and recognized the defendant Sid Marsh by a flash of light, and that he heard and recognized the voice of the other defendant, Rushing Marsh. We quote from his testimony:

"I was at Mr. Boyd's at the second shooting, and when that shooting hushed and stopped I started towards my house. I went up the dirt road. I was about 30 feet of the house. Then I heard somebody talking low, and I stopped to listen where they were at, and another pistol shot. It shot right towards my house. The person was something like ten steps from my house, standing in the road. I shot at him. My son, Jack, was standing there by me. I shot at them and they shot three times at me. I then went back to Mr. Boyd's. They were still down there around the house. One of them was in the house. I saw him as he came out of the house. I knew who he was. It was Sid Marsh, one of the defendants. I could tell who it was, because they had broken bottles or some glass. I heard something spatter in there. When they threw the lights on it, it threw a flash, and he stepped out. I heard Rushing Marsh. I heard him curse and say, 'Come out of there; I hear the train coming.' I did not hear Sid say anything. I saw a dim light in the house when we were swapping the loads."

Mrs. Lee was also examined, and testified, among other things:

"I know Sid and Rushing Marsh. Just before the house caught afire, guns were fired into the dwelling house. There were more than a half dozen guns. They shot them at all the windows from different parts of the house. Sid Marsh came to the house. He said, 'G____ d____ you, if you don't want to get burned up get up and get out of there.' I was under the bedstead. My two children were with me. I got up and got out, leaving Marsh in the house. I saw Sid Marsh strike a match to a quilt. The quilt was hanging in the window."

On cross-examination of the witness Mink Lee the defendants' counsel propounded to him the following questions:

"You didn't swear out a warrant in this case for about two weeks after that, did you?" and "You didn't swear out a warrant in this case until Mr. Simmons came to see you, did you?"

On objection of the solicitor, the court declined to allow these questions to be answered, and on first consideration of the case it was urged by the Attorney General that this ruling was proper, for the reason that the testimony elicited by these questions was clearly irrelevant. On consideration of this objection, we held that it was permissible, on cross-examination, in view of the character of the crime alleged to have been committed and the circumstances thereof detailed by the witnesses, and especially in view of the fact that Lee testified that he recognized the defendants at the time of the commission of the offense, for the defendant to show delay in the commencement of the prosecution, as a circumstance affecting his credibility. This holding is not only sustained by our own case of Brooks v. State, 8 Ala.App. 286, 62 So. 569; s.c. 185 Ala. 1, 64 So. 295, but is sustained by the weight of authority. We take the following from Wigmore on Evidence:

"In general, a delay in instituting a prosecution, or reluctance overcome only by others, is some indication, perhaps only a slight one, in fact, of a consciousness of the weakness of one's case. So also is the failure to sue or prosecute in the jurisdiction or court

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