Patrick v. State
| Decision Date | 20 December 1921 |
| Docket Number | 1 Div. 403. |
| Citation | 92 So. 87,18 Ala.App. 335 |
| Parties | PATRICK v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Mamie Patrick was convicted of arson, and she appealed. Affirmed.
Charles Thompkins, of Mobile, for appellant.
Harwell G. Davis, Atty. Gen., and Lamar Field Asst. Atty. Gen., for the State.
The appellant, together with her son, Joe Saffren, was indicted for arson in the first degree. She demanded a severance which was granted, and upon her trial was convicted and sentenced to the penitentiary for a term of 10 years.
The bill of exceptions does not contain a recital that it contains all or substantially all of the evidence offered in the case. Any state of the evidence will therefore be presumed to uphold the rulings as to the evidence or charges requested. Terry v. State, 17 Ala. App. 527, 86 So 127.
The testimony of the witness Lee as to how much of the house was burned was clearly competent. The witness testified that the house was still burning when he arrived. The testimony tended to establish the corpus delicti, and constituted a part of the res gestæ.
The solicitor asked the state's witness Lee the following question, "Do you know when she [defendant] left there?" The witness answered, "The last I saw of her was the Saturday night before the fire."
The defendant moved to exclude the answer on the ground that it was not responsive to the question, which motion was overruled. This ruling was free from error. Only the party asking a question may move to exclude the answer, on the ground that it is not responsive to the question. Ala. City v. Bullard, 157 Ala. 618, 47 So. 578; Central of Georgia Ry. Co. v. Chicago Co., 169 Ala. 287, 53 So. 832; Shriner v. Meyer, 171 Ala. 112, 55 So. 156, Ann. Cas. 1913A, 1103. Moreover, it may have been relevant to the issue in the case as to when the defendant left.
Many questions were asked the witness Lee as to what was said and done by Joe Saffren and other parties after the fire, which were permitted to be answered over the timely objection of the defendant. The court, however, later on specifically excluded this testimony from the jury, and while the better practice would be not to allow illegal testimony to be introduced, it appears from the record that its relevancy vel non could hardly have been earlier determined, and that under the instructions of the court no injury was done the defendant.
Appellant cannot complain at the trial courts overruling her objection to the question propounded to the witness Lee as to when Mamie Patrick told him her mother was in Cincinnati, for the reason that the question was not answered at that time, but after other and further testimony was given by the witness, and when the answer was later made no objection appears thereto in the record.
The insistence of the state was that there was a conspiracy on the part of the defendant and her son Joe Saffren to burn the house, in order that the defendant might recover on an insurance policy that the evidence showed had been issued to her on the furniture located in the house. It was therefore competent for the state to show that the defendant had moved out of the house a few days before the fire; that after she left some of the furniture was shipped to her, and some of it sold, all, as tending to show that there was such a conspiracy, and that these things were in furtherance of it. Smith v. State, 8 Ala. App. 187, 62 So. 575.
The witness testified that shortly after the fire he received a letter addressed to Lee Patrick, the husband of defendant which letter the defendant admitted that she wrote. Its introduction was objected to by the defendant, on the ground...
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