Salm v. State

• Decision Date: 11 June 1890
• Parties: SALM v. STATE.
• Court: Alabama Supreme Court

8 So. 66

89 Ala. 56

SALM v. STATE.

Supreme Court of Alabama

June 11, 1890

Appeal from city court of Decatur; J. C. EYSTER, Special Judge.

The indictment in this case contained four counts, each charging the defendant, J. M. Salm, with arson in the first degree. The first count charged that the building was a store-house of Mrs. Sue J. Echols, in which a human being was lodged at the time; the second, that it was a store-house of the Decatur Mineral & Land Company, a corporation; the third that it was the dwelling-house of H. C. Barnwell, in which he was lodged at the time; and the fourth, that it was a building or store of the Southern Bell Telephone Company, a corporation. The second count was struck out by amendment and the court sustained a demurrer to the fourth count. Hon W. H. Simpson, the presiding judge of the court, being disqualified to sit on the trial of the case, J. C. Eyster Esq., an attorney of the court, was selected as special judge, and an order to that effect was entered of record. Before this was done, however, several preliminary orders were made in the case, as stated more particularly in the opinion of the court, and these orders were made against the objection and exception of the defendant on the ground of his incompetency. An application for a change of venue was also made and overruled, and exception reserved to its refusal. Other exceptions were reserved to rulings on evidence, and to several parts of the general charge given by the court. The defendant requested, among others, the following charges in writing, and duly excepted to their refusal by the court: "(1) Unless the testimony against the defendant tends to show a motive on his part to burn the buildings mentioned in the evidence, a presumption of law is created in favor of his innocence, which the jury are bound to consider in his behalf. (2) No sufficient evidence of a motive on the part of the defendant to burn the house or houses has been shown to warrant the jury to come to the conclusion that any inducement for gain or revenge actuated or prompted the defendant to commit the offense with which he is charged. (3) If the evidence fails to satisfy the jury that there was any motive or inducement on the part of the defendant to commit the offense, they may look to this fact, if it be a fact, to generate a reasonable doubt as to his guilt. (4) If, from all the evidence, the jury are not satisfied that the defendant had a motive or inducement to burn the house, then the fact that no such motive or inducement is shown, if it be a fact, should be considered by the jury, and this fact may be sufficient to generate a reasonable doubt as to the guilt of the defendant, and therefore for his acquittal. (5) If the evidence fails to satisfy the jury that there was any motive or inducement on the part of the defendant to commit the offense, this fact, if it be a fact, may be ground for a reasonable doubt as to the guilt of the defendant, and therefore for his acquittal. (6) In the absence of a motive or inducement on the part of the defendant to commit the offense with which he is charged, the jury may have a reasonable doubt as to his guilt, and therefore acquit him." "(20) The evidence against the defendant in this case is circumstantial, and his innocence must be presumed by the jury until the case proved against him is, in all its material circumstances, beyond any reasonable doubt; that to find him guilty, as charged, the evidence must be strong and cogent, and, unless it is so strong and cogent as to show the defendant's guilt to a moral certainty, the jury must find him not guilty."

Wert & Speake, for appellant.

W. L. Martin, Atty. Gen., for the State.

STONE C.J.

The record recites that the prosecuting attorney was allowed to amend the indictment in this case by striking out the second count. To this ruling there was an exception. Technically, this ruling was wrong. It was competent for the solicitor, with the permission of the court, to enter a nolle prosequi as to one or more of the counts; and the ruling made accomplished the same result. We will treat the ruling as a nol. pros., and, so treating it, we find no error in this ruling.

The house or dwelling charged in the first count to have been burned is described in the indictment as being the property of Mrs. Echols. Hon. W. H. Simpson, the presiding judge of the city court, being related to Mrs. Echols within the fourth degree of consanguinity, was incompetent...