Weaver v. State

• Decision Date: 12 November 1902
• Citation: 42 S.E. 745,116 Ga. 660
• Parties: WEAVER. v. STATE.
• Court: Georgia Supreme Court

42 S.E. 745

116 Ga. 660

WEAVER.

v.STATE.

Supreme Court of Georgia.

Nov. 12, 1902.

CRIMINAL LAW—VARIANCE—EVIDENCE-EXCLUSION.

1. An indictment for an attempted arson alleged the ownership of the house to be in "Mrs. G. Bevill." On the trial the evidence showed that the deed to the property had been made to Roxie S. Bevill, that she was the wife of G. Bevill, and that Roxie S. Bevill and Mrs. G. Bevill were one and the same person. The jury having found, under proper instructions from the court, that the property belonged to the person named in the indictment, there was no variance, and the court did not err in refusing to grant a new trial upon this ground.

2. Where police officers saw the accused throw oil upon a house for the purpose (afterwards admitted) of burning it, and at this juncture the officers came out from their hiding place, and could have been seen by the accused, who then started away from the house without attempting to ignite the oil or the house, the judge properly submitted to the jury the question as to whether the accused desisted on account of having repented, or because he had seen the officers, and was afraid of apprehension; and a finding against the accused on this issue was not without evidence to sustain it.

3. This court cannot say that there was error in refusing to allow a certain question to be propounded to a witness when it does not appear what answer was expected or would have been made.

(Syllabus by the Court.)

Error from superior court, Chatham county; Pope Barrow, Judge.

John J. Weaver was convicted of arson, and brings error. Affirmed.

W. F. Slater, for plaintiff in error.

W. W. Osborne, Sol. Gen., for the State.

SIMMONS, C. J. The accused, John J. Weaver, was indicted for the offense of "attempt to commit arson, " the allegation in the indictment being that the said Weaver did attempt willfully and maliciously to burn the house of one Mrs. G. Bevill, and did do a certain act toward the commission of said crime, to wit, by putting kerosene oil on said house, but was prevented from executing the same. From the evidence it appeared that a police officer had received information which led him to believe that the house referred to in the indictment was, on the night in question, to be burned. This officer, with two others, secreted himself at a point about 50 yaids from the house at about the time that it was expected the attempt would be made to burn the house. At about 2 o'clock in the morning the officers saw a man, who was identified as the accused, approach the house with something in his hand. After going to the rear end of the house, and placing upon the ground the object that he had in his hand, he walked some distance in the direction of the place where the officers were concealed, stopped, and looked around. He then walked around the house, and, after taking some time, apparently investigating the surroundings, he returned to the place where he had deposited what then for the first time was recognized by the officers to be a can or tin bucket, picked it up, and poured its contents upon the side of the house. Upon an examination made shortly after this occurrence, the fluid poured from the can or bucket upon the house was found to be kerosene oil. After throwing the oil upon the house, the accused turned around, and as he turned the officers emerged from their place of concealment. It appeared that two negro men were asleep on a bed near the window on the side of the house where the oil was thrown, and that some of the oil went through the window and onto this bed. The officers would not testify whether the accused saw them, but it appears that he stepped back from the building after throwing the oil upon it, and stopped for about 30 seconds, after which time he turned and walked away at a rapid walk. When he had gone some distance, the officers determined to catch him. There was a dim light, and he could be seen by the officers. They supposed that he had seen them, but did not know that he had. They followed him, and when they had come within about 40 yards of him he threw the bucket or can which had contained the oil into a ditch, and walked on across a nearby bridge. He saw the officer approaching him, stopped, and was then arrested. He first gave his name as Carter, and, when asked where the bucket was that he had thrown away, he replied, "It is over there." After going some distance with the officer without speaking, he said to him: "I will tell you the truth. My name is John J. Weaver. I am a shoemaker. I know I am ruined. I was hired to do this by Mrs. Roxie Bevill, my niece, wife of Granville Bevill. My destitute circumstances drove me to it. I was to get twenty-five dollars for burning the house. My family is in destitute circumstances, "—and at this point he began to cry. He told the officer further that the house was insured for $600, and asked him where he was going to take him. When told that he would be taken to the police barracks, he asked to be carried by Mrs. Bevill's house, stating that she would secure a bond for him. It was shown that Mrs. G. Bevill was the wife of Granville Bevill, and that her given name was Roxie. The deed to the land on which the house was situated was to Roxie S. Bevill. The accused, in his statement, admitted that he had thrown a half gallon of oil on the side of the house, and that he had been offered $25 by Mrs. Bevill to burn the house, but claimed that, after throwing the oil upon the house, "some unknown voice" had told him, "Don't do that!" He said further: "I turned around, and w^;, ent back, giving up the idea of burning the house, and was going back to tell her that I would throw up the job. I did not know...