Westbrook v. State

• Decision Date: 08 October 1892
• Citation: 91 Ga. 11,16 S.E. 100
• Parties: WESTBROOK . v. STATE.
• Court: Georgia Supreme Court

16 S.E. 100

91 Ga. 11

WESTBROOK .

v.STATE.

Supreme Court of Georgia.

Oct. 8, 1892.

Arson— Instructions—Alibi—Weight and Sufficiency of Evidence.

1. The accused, in his statement to the court and jury on his trial for arson, having said that at the time of the burning he was in his house asleep, and the evidence showing that his house was a quarter of a mile or more distant from the scene of the offense, it was not error to instruct the jury on alibi as a defense set up in the case, and that the burden of proving it was upon the accused. As matter of pleading, the defense of alibi is covered by the general issue of not guilty.

2. There was direct evidence of the burning, and circumstantial evidence from which the jury could rightly infer that the fire was not accidental, but felonious. Thus the corpus delicti was established independently of the confession. The evidence was ample to warrant the verdict.

(Syllabus by the Court.)

Error from superior court, Sumter county; W. H. Fish, Judge.

Russell Westbrook was convicted of arson. His motion for a new trial was overruled, and he brings error. Affirmed.

The following is the official report:

In addition to the usual grounds that the verdict was contrary to law, evidence, etc., defendant alleged in his motion that the court erred in charging: "The prisoner at the bar, Russell Westbrook, says further that he was not present at the time and place of the commission of the crime, if any crime was committed; that if there was a willful and malicious burning of the house of Mack Bass, as described in the indictment, that he did not commit that crime, because he was not there at the time and place where it was committed. That in law is called an alibi. When a prisoner sets up the defense of alibi, it is necessary for him to prove it." Defendant alleges that this was error, because there was no defense of alibi, and defendant did not plead alibi. In his order approving the grounds of the motion the judge below makes this statement: "The evidence for the state showed that Russell West-brook's (defendant's) home—house where he lived—was some considerable distance from the houses burned, some quarter or half a mile; and defendant said in his statement to the jury that 'at the time of the burning" I was in my house asleep. What time it was I could not tell. I was frightened at the time that this gentleman came by and called me. Mr. Tommie Griffin and Johnny Downs came there. They called, "Russell, Russell, Russell." I was asleep, and never heard them. My wife was side of me. She touched me, and woke me up. Johnny Downs said, "Call him again." Mr. Tommie Griffin said, " Russell, Mack's house is on fire." I said, "No, it aint." I jumped up.'" The evidence for the state, briefly stated, was to the effect the burning by further inference was not accidental. The defendant had been employed by Bass, and was angry with him. The fire was discovered by Bass about half past 8 or" 9 o'clock at night. Defendant lingered about the premises after dark. When Bass, who was the first person who got to the burning buildings, reached them, he discovered that a cow of defendant's, which had been put in the stable, had been released, while Bass' cow, which had been left loose in the lot, had been put into one of the stalls, and, with other stock of Bass', was in the burning buildings, and...