Williams v. State
| Decision Date | 06 February 1912 |
| Citation | 58 So. 925,4 Ala.App. 92 |
| Parties | WILLIAMS v. STATE. |
| Court | Alabama Court of Appeals |
On Application for Rehearing, May 14, 1912.
Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.
Jim Williams was convicted of arson, and he appeals. Affirmed.
Certified questions answered by Supreme Court. 58 So. 921.
Knox, Acker, Dixon & Sterne, of Anniston, for appellant.
R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.
DE GRAFFENRIED, J.
At common law neither the husband nor the wife could be convicted of arson for willfully setting fire to or burning the property of the other. One of the essential elements of arson is that the offense shall be committed for the purpose of injuring or defrauding the party in possession of the property at the time of the commission of the offense. As the husband and wife, in contemplation of law, are one--the wife being under the protection of the husband, feme covert--the common law declared that, "to constitute the offense there should be an intent to injure or defraud some third person," and the husband and wife, being identified with each other as one person, were therefore, by virtue of their peculiar status to each other, held by the common-law judges as unable to commit the offense the one against the other. Rex v. Elizabeth March, 1 Moody, C C. 182.
As arson is an offense against the possession rather than property, it was also held that a tenant in possession and occupancy of a house under a lease could not be guilty of arson in willfully setting fire to or burning such house while in such possession and occupancy under the lease. State v. Young, 139 Ala. 136, 36 So. 19, 101 Am. St. Rep. 21.
To correct the mischiefs arising from the doctrines above stated, the Legislature, in adopting our present Code provided that "any person who willfully sets fire to or burns the property of his wife or her husband, or of his landlord, without the express consent of the owner to so burn such property, shall be guilty of arson in the same manner and to the same degree, and shall be punished in the same manner and in the same degree as if the relation of husband and wife or landlord and tenant did not exist." Section 6301, Code of 1907.
By adopting the above section, the Legislature simply destroyed a defense which certain persons, prior to its adoption were, under the law, authorized to make to indictments charging them with the crime of arson. The section creates no new offense. It simply declares that the party charged with such crime shall not be acquitted because such party was, at the time of the alleged offense, the husband, the wife, or tenant of the party whose property was willfully set fire to or burned, unless the act was done with the express consent of the owner of the property.
In other words, the above section has, in a prosecution for arson, rendered the fact that the defendant was, at the time of the alleged offense, the husband, the wife, or the tenant of the party named in the indictment as the owner of the property, irrelevant and incompetent as evidence unless it is accompanied by evidence tending to show that the wrong alleged to have been committed was done with the express consent of the owner of the property. By adopting said section the Legislature brought the husband, the wife, and the tenant of the owner of the property willfully set fire to or burned within the direct operation of sections 6295, 6296, and 6299 of the Code. State v. Law Lamar, Jr., 59 So. 737, present term.
As the Code prescribes forms of indictments for arson in its three degrees, and as the indictment in this case charges, in the exact language of the form prescribed by the Code, the defendant with arson in the second degree, the indictment is sufficient and meets all the requirements of the law. Coleman v. State, 150 Ala. 64, 43 So. 715.
2. It has been many times decided that the declarations of a party in possession of property, explanatory of his possession, are competent evidence, and the rule is general that declarations made against the interest of the party making them are also competent evidence. Holman v. Clark, 148 Ala. 291, 41 So. 765.
In this case there was evidence, introduced by the state when offering its testimony in chief, that, while the defendant was in possession of the residence when it was burned, his possession was the possession of his wife. One of the witnesses for the state testified that he had insured the property for $1,000 "for Mrs. J. E. Williams," and that three or four days before the residence was destroyed the defendant came to him and obtained a vacancy permit on said premises for the purpose of keeping the insurance policy alive while the residence was unoccupied. In addition to the above, the witness Gus Hubbard testified that the defendant, a few days before it was burned, in speaking of the residence, "said it was his, in his wife's, made out in his wife's name, but it was insured." The jury were therefore authorized to infer that the residence belonged to the defendant's wife, and that her name was "Mrs. J. E. Williams," as alleged in the indictment.
It is a familiar rule that, whenever there is any legal evidence in a case tending to establish the existence of a controverted fact, the question becomes one for the determination of the jury. Stephens v. State, 1 Ala. App. 159, 55 So. 940.
3. The existence of the policy and the fact that it was issued to Mrs. J. E. Williams were mere collateral matters about which the witness B. H. Denman, who issued the policy, was competent to testify without accounting for the absence of the policy. If he knew those facts, he had a right to testify to them. First National Bank v. Lippman, 129 Ala. 608, 30 So. 19.
4. The fact that the defendant, who, at the time of the commission of the alleged offense, lived at Ensley, some distance from Jacksonville, where the residence which was burned was situated, was, only two or three days before it was destroyed by fire, driving about near Jacksonville with his alleged accomplice; that on that particular occasion he called upon and obtained from the agent of the insurance company a permit to allow the residence to remain vacant; the fact that the residence was vacant, and was therefore producing no income; and the fact that, shortly after defendant's arrest, he asked the officer making the arrest if the alleged accomplice had made an affidavit against him connecting him with the alleged offense--were all matters corroborative of the testimony of the alleged accomplice, and they possessed some tendency to connect the defendant with the commission of the corpus delicti.
It is true that the defendant offered explanations as to all of these matters,...
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Morris v. State, 8 Div. 329.
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