Opinion
4 Div. 467.
May 2, 1939. Rehearing Denied June 6, 1939.
Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.
R. C. Balkum, alias Balkom, was convicted of arson, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Balkum v. State, 4 Div. 98, 190 So. 292.
Richard Flowers testified that he was living in the house which was burned; that he rented it from named parties; that witness and his wife were not separated during the period for which the house had been rented; that the only connection witness' wife had with renting the house was to go and see when they could get it; that witness made the rental contract and paid the rent. On cross-examination witness was asked: "What were you doing, during that time?" The State's objection to this question was sustained, and defendant reserved an exception.
Witness Cauley testified that he saw defendant on the street in front of witness' house on the night the house was burned; that the time was about 1:15, and defendant was walking down the street in the direction of the Flowers house, carrying a five-gallon can. On cross-examination he testified that he had gotten home from his work about 12:30 that night; that he went to bed; that there was no one else there; that his wife was at his father's house. Defendant then asked: "What had she been there for?" The State's objection to the question was sustained.
Rowe Rowe, of Elba, for appellant.
The indictment alleged ownership of the house in Flowers, who claimed that he, instead of his wife, rented the house and paid the rent therefor. It was therefore proper on cross-examination to show what kind of work, if any, he was engaged in as shedding light on his ability to pay rent. Worrell v. State, 26 Ala. App. 577, 163 So. 901. The witness Cauley having testified in effect that the occasion of his being up at the unusual hour was that his wife came home from his father's and awakened him, defendant should have been permitted to ask witness what his wife had gone there for as testing the accuracy of his testimony. Dawkins v. State, 19 Ala. App. 589, 99 So. 661. The State's question to witness Livings, asking what were the peculiarities of the shoe introduced in evidence, was subject to defendant's objection that it called for the conclusion of the witness. White v. State, 12 Ala. App. 160, 68 So. 521. On motion for a new trial the court must consider carefully the State's evidence and accord the defendant the benefit of any reasonable doubt arising from a consideration of all of the evidence; and under this rule the lower court erred in denying defendant's motion for new trial. Plyler v. State, 21 Ala. App. 320, 108 So. 83; Roy v. State, 25 Ala. App. 510, 149 So. 713.
Thos. S. Lawson, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen., for the State.
The undisputed evidence showed Flowers rented the house and was in possession at the time of the fire. It was immaterial whether or not he had a job at the time of the fire. The reason why the wife of witness Cauley went to the house of witness' father was wholly immaterial, but the scope of cross-examination rests largely in the discretion of the trial judge. Allsup v. State, 15 Ala. App. 121, 72 So. 599; Grayham v. State, 22 Ala. App. 170, 113 So. 646. A witness may point out peculiarities in shoes which belong to a defendant or found in his possession, as corresponding with tracks at or near the scene of the crime. Young v. State, 68 Ala. 569. This was not a conclusion but related to a fact as to which the witness could testify. Moore v. State, 4 Ala. App. 65, 59 So. 189; Hodge v. State, 97 Ala. 37, 12 So. 164, 38 Am.St.Rep. 145; Cunningham v. State, 14 Ala. App. 1, 69 So. 982. The corpus delicti in an arson case may be proven by circumstantial evidence. Cunningham v. State, supra; Davis v. State, 141 Ala. 62, 37 So. 676; Webb v. State, 26 Ala. App. 241, 157 So. 262. There was no error in overruling the motion for a new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Patterson v. State, 224 Ala. 531, 141 So. 195.
The defendant was indicted on a charge that he did willfully set fire to, or burned, or caused to be burned, etc., a dwelling house, the property of Richard Flowers.
The ownership of the property was properly laid in Richard Flowers, the tenant. Faulk v. State, 23 Ala. App. 213, 123 So. 104; Adams et al. v. State, 63 Ala. 177. As to what business the tenant was engaged in at the time of the fire, as a means of livelihood, is immaterial, and the State's objection to the question seeking to bring out this evidence, was free from error.
The question propounded to the witness Cauley, on cross examination, asking what witness's wife had been up to his father's house for, was immaterial and irrelevant, and could have no bearing upon the issues involved in this case.
The third proposition insisted upon by counsel for appellant, is that the trial court erred in allowing the witness, Lee S. Livings, to point out the peculiarities in shoes, which admittedly belonged to defendant and found in his possession immediately after the fire, which said shoes corresponded with the tracks found at or near the scene of the crime. This was a proper inquiry and did not call for a conclusion of the witness, but rather was the statement of collective facts. Young v. State, 68 Ala. 569.
The principal insistence of error by the appellant is that the trial judge refused to grant appellant's motion for a new trial on the ground that the corpus delicti had not been proven. The evidence for the State tended to prove that the building, which was burned, was a dwelling house occupied by Flowers and his family; that Flowers' wife and children had gone for a visit to Florida; that he was staying at his father's house some distance way; that the house had been closed and unoccupied for a period of two days; that no fire was on or about the premises; that the fire was discovered about 2 o'clock in the morning, at which time it was in full flame. Upon investigation, after the fire, there were found two sets of tracks in the yard adjacent to the burned building. One of these sets of tracks corresponded with shoes found in the possession of this defendant at his home.
The above facts constitute prima facie evidence of the corpus delicti. In Winslow v. State, 76 Ala. 42, it was said: "In this case, there was evidence tending to show a fresh track in the lane leading from the road to the house; that this track, and the track of the defendant, corresponded; that the fire, when first discovered, was burning on the outside, about six feet from the ground, at a part of the house in which there had been no fire during the night; that the fire occurred about midnight, and spread so rapidly that only one bed and bedding were saved." On this evidence the court held that, while there was some conflict in the testimony and there was evidence tending to show that the burning may have been accidental, the evidence tending to show the corpus delicti is sufficient to lay a foundation on which to rest the admissibility of the confessions; and, we may add for the introduction of other evidence tending to connect the defendant with the crime.
The proof of the charge in all criminal cases involves the proof of two distinct propositions: (1) That the act itself was done; and (2) that it was done by the person charged, and by none other — in other words, proof of the corpus delicti and of the identity of the prisoner. In the instant case, there was evidence tending to show a fresh track in the yard of the house which was burned, which track corresponded to a shoe found in the possession of defendant, wet and muddy; that this track led in direction of defendant's house; that the defendant was seen near the scene of the crime at an unusual time of the night with a five gallon gasoline can, and that at about 10 o'clock, at night, he bought two gallons of gasoline. All of these were suspicious circumstances; and the defendant's proximity to the place of the crime at a very unreasonable hour, with opportunity to commit the crime, is a circumstance to be weighed by the jury in connection with all of the other evidence in the case to determine defendant's guilt. Lindsey v. State, 170 Ala. 80, 54 So. 516; Enzor v. State, 24 Ala. App. 346, 135 So. 595.
After carefully considering the whole testimony, and giving to the verdict of the jury and the Judge trying the case the presumption to which they are entitled, we cannot say that the trial judge committed error in refusing to grant the motion for a new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Patterson v. State, 224 Ala. 531, 141 So. 195.
We find no error in the record, and the judgment is affirmed.
Affirmed.