Stone v. State

• Citation: 105 Ala. 60,17 So. 114
• Parties: STONE v. STATE.
• Decision Date: 07 February 1895
• Court: Supreme Court of Alabama

17 So. 114

105 Ala. 60

STONE v. STATE.

Supreme Court of Alabama

February 7, 1895

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Tom Stone was convicted of arson, and appeals. Reversed.

The appellant was indicted, tried, and convicted of arson, and sentenced to the penitentiary for seven years. The indictment as originally preferred and the amendments thereto are shown in the opinion. The defendant duly excepted to the court allowing the addition of the new counts to the indictment. On the trial of the cause, as is shown by the bill of exceptions, Henry Chase, as a witness for the state testified that the barn of the Alabama Nursery Company was destroyed by fire about 12:30 o'clock on the night of June 8, 1894, with 11 head of stock and some provender; that this barn was about 80 or 100 feet from the residence of Dudley Powell, who was in the employ of the Alabama Nursery Company, and about 300 yards from the dwelling house of Herbert Chase; that the barn and the dwelling house of Herbert Chase were under the common fence, which inclosed about 380 acres of land; that there were several buildings between the dwelling of Herbert Chase and the barn that was burned, and that there was another barn quite near the dwelling house of Herbert Chase, and used in connection with it; that the barn that was burned and the dwelling house occupied by Powell were in the possession and control of Herbert Chase. This witness further testified that Aaron Hammond had been in the employ of the Alabama Nursery Company, to whom the property burned belonged, and that his wages had been reduced by said company. Dudley Powell, a witness for the state, testified that the property burned consisted of two separate buildings, the barn and a corncrib containing corn; that the buildings burned were within 80 or 100 feet of his dwelling; and that he was in the employ of the Alabama Nursery Company, to whom the buildings burned belonged, and that he had possession charge, and control of the buildings that were burned. Z. P. Davis, the chief of police of the city of Huntsville, and J. P. Powell, the sheriff of Madison county, testified that on the night of July 22, 1894, by previous agreement with one Richardson, a detective from Memphis employed by Chase to work up the case they stationed themselves in a secluded place on the side of the road, about two miles from Huntsville; that, after they had been there a short time, Richardson and the defendant and Aaron Hammond drove up in a buggy within 8 or 10 feet of where they were hidden. Upon the examination by the defendant of these witnesses, at this juncture of their testimony, they testified: "We did not know where Richardson got up with Hammond and Stone, or what he said to them on the way to where we were to meet him, nor what led up to the conversation between him and Hammond and Stone, nor whether he offered them any inducement or reward, or made any promises of any kind to them, to induce them to make the statements we heard, and all we know is the statements were made, and that Hammond and Stone were not aware of our presence." Thereupon the defendant objected to the witness giving any conversation that occurred between the detective and Hammond and Stone. The court overruled their objection, and thereupon the witness testified as follows "We heard Richardson ask 'if this was a good place to stop and talk'; and Hammond replied, 'There are some houses near here, but if we talk low it will be safe.' Richardson then said: 'I want to know who it was that burned Chase's barn. They were slick ducks, and I want to know them.' Hammond spoke up and said: 'Me and Tom done it. We did the burning out there.' Stone said: 'Me and Aaron done it. We done the burning out there.' And both Hammond and Stone said: 'If you don't believe we are good hands at the business, and will do what we say, why just pick your house, and we will burn it to-night.' Hammond also said: 'Tom is a man in whom I have the utmost confidence, and you can trust him.' The parties then drove off." The defendant objected to the court's admitting this testimony in evidence, moved the court to exclude the same from the jury, and duly excepted to the court's overruling his motion. The witness Davis further testified "that he heard Richardson say that Aaron Hammond told him the reason he burnt Chase's barn was that his wages had been reduced by the Alabama Nursery Company, and that Stone had helped him to do it." The defendant objected to the witness Davis testifying as to the conversation between Richardson and Hammond and Stone, moved to exclude the same from the jury, and duly excepted to the court's overruling his motion. The defense attempted to be made by the defendant was that of an alibi, and he introduced evidence tending to show that he was not present at the place of the burning on the night the barn and crib were alleged to have been burned. Upon the introduction of all the evidence, the defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the evidence of Henry Chase and Dudley Powell as to the one or the other having possession, charge, and control of the barn-Chase that he had possession, and Powell that he had-are equally balanced in the minds of the jury, they must find the defendant not guilty." (2) "If the jury believe the evidence of Henry Chase, they must find for the defendant." (3) "If the jury believe the evidence in this case, they must find the defendant not guilty." (4) "The jury cannot look to the evidence of Henry Chase as to reducing the wages of Aaron Hammond as furnishing a motive to this defendant to commit the offense alleged." (5) "The jury cannot look to the evidence of Mr. Davis stating that Mr. Richardson told him that Aaron Hammond said to him, Richardson, that he burned this barn because Mr. Chase cut down his wages, as furnishing a motive to this defendant for the commission of the alleged offense." (6) "The law presumes that no one will commit a crime without a motive, and the absence of motive is sufficient in itself to generate such a doubt of guilt as to bring about an acquittal." (7) "It is the duty of the state to furnish you the best evidence the nature of the case affords, and you may look to the fact that the detective, Richardson, is not produced before you, in determining what weight you will give to the alleged confessions." (8) "The jury must take with caution confessions produced in the manner shown in this case, and the jury must be satisfied beyond a reasonable doubt that the statements claimed to have been overheard by Powell and Davis were not produced by Richardson by promise of reward or by trickery or deception." (9) "If the jury find from the evidence that Tom Stone had no motive to do this burning, this fact alone, if it be a fact, could be taken by them to generate a reasonable doubt of his guilt, and entitle him to be acquitted." (10) "Unless the jury is satisfied that the confessions testified to by Mr. Davis and Sheriff Powell were made freely and voluntarily, without inducement or persuasions, they must acquit the defendant." (11) "If the jury is satisfied that there is no other evidence, beyond the confessions testified to by Mr. Davis and Mr. J. P. Powell, showing that the barn was burned willfully by some responsible person, the defendant must be acquitted." (12) "If the jury find from the evidence that Tom Stone had no motive to burn this property, they would be justified in basing a reasonable doubt of his guilt on this." The bill of exceptions states that "in the course of his argument the solicitor said to the jury, 'He don't say he didn't do it,' whereupon the defendant excepted to this language. The court told the solicitor he should not comment on the failure of the defendant to testify, and the solicitor replied: 'I have not commented on his not testifying, nor shall I; but that he offers no proof to rebut that offered by the state, sitting here holding his mouth.' The defendant duly excepted to this language by the solicitor, and assigns the same as error."

Tancred Betts and R. E. Spragins, for appellant.

Wm. C. Fitts, Atty. Gen., for the State.

McCLELLAN J.

The indictment returned by the grand jury in this case charged that Tom Stone "willfully set fire to or burned a barn within the curtilage of the dwelling house of Herbert Chase," and to this indictment there was a plea of not guilty and a joinder of issue thereon. The case thus made up was presented to the jury, the evidence was adduced on both sides, and the jury were instructed by the court, and retired to consider of their verdict, "when," as is recited in the judgment, "it appearing to the court that there was a variance between the allegations and the proof, in this: the indictment described the property as a barn within the curtilage of Herbert Chase, and the proof showing it was a barn within the curtilage of the dwelling house of Dudley Powell, and the defendant consents that the indictment may be amended by describing the property willfully set fire to or burned as being a corncrib, the personal property of Herbert Chase, or a barn within the curtilage of Dudley Powell, the state by its solicitor amends the indictment to meet said variance by adding these counts, as shown by indictment filed in open court on 22d day of August, 1894, to which the defendant again pleaded not guilty," upon which issue was joined, etc. The bill of exceptions states that upon the development of a variance between the averments of the indictment and the proof, in the particular referred to, the defendant consented "for the indictment to be amended so as to show that it was a corncrib, instead of a barn, and that...