Opinion
4 Div. 836.
April 17, 1945. Rehearing Denied May 15, 1945.
Appeal from Circuit Court, Dale County; J. S. Williams, Judge.
James J. Clayton was convicted of arson, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Clayton v. State, 4 Div. 376, 23 So.2d 397.
W. L. Lee Alto V. Lee, III, of Dothan, and John C. Walters, of Troy, for appellant.
The evidence shows duress on the part of the officers having defendant in custody. Any confession or statement made by him was, therefore, involuntary and inadmissible. Palmore v. State, 244 Ala. 227, 12 So.2d 854. As the automobile was the property of Pratt and was burned at his instance, it was not a willful burning. There was no evidence that the burning was done with the intent to defraud any one. Under this state of facts defendant could not be convicted and his requested charges so instructing the jury should have been given. Southern R. Co. v. Clark, 27 Ala. App. 244, 170 So. 93; 45 Words Phrases, Perm. Ed., Willfully, p. 341. The count of the indictment charging that the property was destroyed for insurance was charged out. The argument of the solicitor was, therefore, improper and erroneous. Heard v. State, 81 Ala. 55, 1 So. 640. It is not unlawful for one to burn his own property or to burn the property of another with his consent, if there is no insurance.
Wm. N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty. Gen., for the State.
Any person who willfully sets fire to, burns or causes to be burned an automobile, is guilty of arson. Code 1940, Tit. 14, § 27. Voluntary confessions are admissible. Morris v. State, 25 Ala. App. 494, 149 So. 359; McNeel v. State, 25 Ala. App. 36, 140 So. 185. A bill of exceptions must be construed most strongly against the exceptor. Ballard v. State, 236 Ala. 541, 184 So. 260; Anderson v. State, 30 Ala. App. 124, 2 So.2d 461; Wilson v. State, 30 Ala. App. 126, 3 So.2d 136; 7 Ala. Dig., Crim.Law, 1091(15). While the first count of the indictment was nol prossed, it does not appear at what stage of the trial this was done. Construing the bill of exceptions most strongly against the appellant, the order as to this count was entered after the solicitor's argument, in which event the court's ruling on the argument was proper. Moreover, the second count alleged, in the alternative, the burning or aiding in burning of the automobile of Pratt with intent to defraud, and the testimony showing removal of tires and radio from the automobile prior to its burning, there was clearly a tendency of evidence to establish intent to defraud some one. Defendant was an accessory and was subject to prosecution. Code, Tit. 14, § 14. The argument of the solicitor is a correct statement of law in application to reasonable conclusions to be drawn from the evidence, and was permissible. 23 C.J.S., Criminal Law, § 1090, p. 540.
Appellant, under the second count of the indictment, was convicted of arson; more specifically that he willfully set fire to or burned or caused to be burned, or aided in the burning of an automobile, the property of Paul E. Pratt.
An analysis of the tendencies of the evidence will not add any value to this opinion in the view we take of the questions presented by this record.
There nowhere appears in the record a tendered written request for the general affirmative charge in appellant's behalf. No motion for a new trial was presented.
Under the caption in the record, "Written Refused Charges," we find two unnumbered written charges. Both are signed by the trial judge, but neither bears the endorsement "given" or "refused." Clearly, the mandates of the statute appertaining were not observed, and we are not privileged to review the action of the primary court in his treatment of the two charges in question. The fact that they are set out in the record under the endorsement of the clerk that they were refused does not authorize an extension or alteration of the rule. Title 7, § 273, Code 1940; Mason v. State, 16 Ala. App. 405, 78 So. 321; Kiker v. State 233 Ala. 448, 172 So. 290; Berry v. State, 231 Ala. 437, 165 So. 97.
It is insisted in brief of counsel for appellant that the lower court was in error in admitting in evidence an alleged statement of confession made by the defendant. It is, of course, well recognized that confessions in criminal cases are prima facie inadmissible and their admissibility cannot be accepted unless it is shown to the trial court that they were voluntarily made. Washington v. State, 53 Ala. 29; Kinsey v. State, 204 Ala. 180, 85 So. 519. In the instant case a sufficient predicate was based before the statement was admitted in evidence. The fact that the defendant, when testifying in his own behalf, gave evidence that he was maltreated, beaten and otherwise abused and, on this account and in fear of additional bodily harm, he made admissions indicating his guilt which were not true, does not clothe this court with the authority to accept the evidence of the defendant relating to the matter and to reject that of the State's witnesses evidencing a contrary state of facts. Goodwin v. State, 102 Ala. 87, 15 So. 571; Bozeman v. State, 21 Ala. App. 457, 109 So. 366.
We find no error in the record, and the judgment of the lower court is ordered affirmed.
Affirmed.
On Rehearing.
On application for rehearing it is first urged in brief of counsel for appellant that the lower court erred in overruling objections to a portion of the solicitor's argument to the jury.
The record discloses: "During the argument, Mr. Borders, the State Solicitor, stated that the defendant stated that he burned the car and that if he burned it at the instance of Pratt it would be a violation of the law. Mr. Lee objected to this argument and the court overruled the objection and the defendant duly excepted."
Appellant was originally indicted under two counts of the indictment, jointly with one Pratt, the alleged owner of the automobile which was burned. At some place in the proceeding of the trial, the record does not show when, the lower court entered a nolle pros as to Count One of the indictment. It is insisted in brief here on application for rehearing that, since Count One of the indictment was nol prossed, the statement of the solicitor in question was a misstatement of the law applicable to the remaining Count Two and therefore should have been disallowed by the primary court. Assuming, but not deciding, that there is merit in this position, this court has no way of determining from the record at what time in the proceedings the court below eliminated Count One by a nolle pros. From aught appearing, both counts may have been included in the issues before the court at the time the aggrieved statement was made; in which event, clearly the allegations of Count One of the indictment and the evidence in support thereof justify the assertion by the solicitor.
It is well established by many authorities that on appeal appellant carries the burden of showing reversible error, and all doubts arising on the face of the record must be construed most strongly against the excepter. The presumption is always favorable to the rulings of the lower court, if there is nothing appearing to the contrary. Ballard v. State, 236 Ala. 541, 184 So. 260; Birmingham Railway, Light Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann.Cas. 1916A, 543.
Opinion extended and application overruled.