Street v. State
| Decision Date | 13 November 1956 |
| Docket Number | 8 Div. 751 |
| Citation | 39 Ala.App. 190,96 So.2d 680 |
| Parties | George Perry STREET v. STATE. |
| Court | Alabama Court of Appeals |
Howell T. Heflin and Chas. E. Carmichael, Jr., Tuscumbia, for appellant.
John Patterson, Atty. Gen., and Robt. P. Bradlcy, Asst. Atty. Gen., for the State.
The indictment, omitting the formal parts, charged in count 1 that appellant, 'Willfully set fire to or burned, a dry cleaning building, the property of Maurice Blackwell and Sara Blackwell, not within the curtilage of a dwelling.'
The charge in count 2 is that appellant wilfully set fire to, burned, or aided or procured the burning of etc.
The defendant was by a jury found guilty as charged, and was sentenced to the penitentiary for a term of four years.
Count 2 of the indictment follows substantially the language of the statute, as well as the form provided for in the Code, Title 14, § 24; Form No. 10, Title 15, § 259, Code 1940, and was not demurrable. Fortenberry v. State, 35 Ala.App. 426, 48 So.2d 261.
We are of the opinion the provisions, both in the statute and in the form provided by the Code, supra, for the designation of the building as not being within the curtilage of a dwelling, have reference to the buildings named in the statute just before the provision, and not to the class of buildings set out in the separate clauses following this provision. The failure to describe the shop as not within the curtilage of a dwelling did not, as contended' by appellant, render said count so vague, indefinite and uncertain as to make it impossible to determine whether it charged arson in the first or in the second degree.
Defendant's motion for a continuance was refused by the court. The motion sets forth that appellant was first put to trial on said charge on June 22, 1955; that on June 24 a mistrial was entered when the jury was unable to reach a verdict; that the case was reset for trial June 27; that because his counsel was engaged in the trial of numerous other cases they had not had adequate time to prepare his case for retrial; that certain newspaper accounts of the first trial were prejudicial to him; that certain State's witnesses appeared in an intoxicated condition and created a scene in the court room; all of which would deprive the defendant of a fair and impartial trial.
The question of the granting or refusing of a continuance rests largely within the sound discretion of the trial court and the exercise of such discretion is not reviewable except for gross abuse. We find no evidence of abuse of discretion in this case. Burleson v. State, 22 Ala.App. 526, 117 So. 500; Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837.
Daniels v. State, 12 Ala.App. 119, 68 So. 499; Carr v. State, 16 Ala.App. 176, 76 So. 413.
If the evidence presented by the State affords an inference that the fire was not accidental but was of incendiary origin, the result of human agency, it is sufficient to establish the corpus delicti. Cunningham v. State, 14 Ala.App. 1, 69 So. 982. The guilt of the defendant may be proven by circumstantial evidence as well as by direct evidence. Whatley v. State, 37 Ala.App. 706, 75 So.2d 182.
The testimony for the State tends to show that a fire occurred at a dry cleaning establishment owned and operated by Mr. and Mrs. Maurice Blackwell in the City of Sheffield on Sunday night, November 28, 1954.
Mr. Taylor, the Fire Chief of the City of Sheffield, testified that after the fire was extinguished he could identify the fumes of gasoline in a pasteboard box containing papers in the office of the plant, and on a window sill where the panes were broken. A can containing about a gallon of gasoline was found in the alley, directly in front of and about 20 feet from the window. This can was introduced in evidence. Other firemen and policemen testified to substantially the same state of facts as was testified to by Mr. Taylor.
Mr. and Mrs. Blackwell described the area within the establishment where the fire occurred. According to their testimony the fire was confined to the office of the establishment. The office was in the back portion of the building and contained a filing cabinet, a table and a pasteboard box containing cancelled checks and other papers. Theron Blackwell, Maurice Blackwell's brother, also used the office in paying off his employees.
Douglas Rithmire testified he sold appellant two gallons of gas and loaned him the gas can introduced in evidence sometime before the fire on Sunday night. At that time the appellant appeared to be under the influence of intoxicants.
Mr. James Appleton testified that early Sunday evening witness, appellant and Robert Hewlett left the restaurant of Oscar Frank and rode around the streets of Sheffield in an automobile, with witness driving. That they had been drinking at various times during the day. That appellant went to Brook Service Station and returned in a few minutes with a can of gasoline. After pouring some of it into the gas tank of the automobile, appellant got back into the car and set the gas can on the floor. Upon arriving in the vicinity of the cleaning establishment appellant directed witness to stop the car at the entrance to the alley directly behind the Blackwell building. Appellant got out of the car and took the can with him and said he was going to set something on fire, but didn't say what it was. Witness picked appellant up about an hour later at Red Brewer's and took him home. At that time appellant said he had been paid to burn Blackwell's place.
Robert Hewlett testified to substantially the same facts as those testified to by Appleton. He stated that when appellant got out of the car with the gas can at the entrance to the alley he said something about there was going to be a fire, and witness told him he was 'a damn fool if he did it.' After this conversation appellant proceeded down the alley leading behind the cleaners.
After proper predicate was laid a written statement signed by appellant was introduced in evidence. In the statement appellant admitted that he broke a window at the Cleaners, poured the gasoline inside and threw a lighted match into the gasoline. He stated he told Oscar Frank he would set fire to the building for $500 and that Frank gave him $25 and said he would give him the rest later.
Brief of counsel sets out the contention of defendant, as follows:
It is our opinion that the evidence presented a question for the jury to determine and was sufficient to sustain the verdict. Therefore, there was no error in the court's action denying the defendant's motion to exclude the State's evidence on the ground the corpus delicti had not been proven, nor in refusing to give the general affirmative charge or in denying the motion for a new trial on the ground the verdict of the jury was contrary to the evidence.
The defendant did not testify in the case. During the course of his argument to the jury the country solicitor stated: (1) 'There is not one iota of testimony that he has denied...
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