Hinds v. The State

Hinds v. The State. Indictment for Arson. 1. Averment and procf of ownership; variance; what is reoisable. — On a trial raider an indictment for arson, the house burned being averred to have belonged to “ieo?i.It.,” while the proof showed that it belonged to “Leonidas R,” who “was also known and called by the name of Leon R.no objection to the evidence being made in the court below, and no charge being asked and refused as to any supposed variance between the averment and proof of ownership, the question of such variance is not here presented for decision. 2. Leading questions to witness; what is reoisable. — In the examination of witnesses, the form and manner of interrogating them must be left, in a great degree, to the discretion of the presiding judge ; and the allowance by him of a leading question is not revisable on error. 3. Form, of question and answer, as to state of feeling between witness and accused. — On a trial for arson, the prosecutor may be asked, “what was the state of feeling between you and the accused at the time of the burning;” and he may answer, “that it was not good.” There is nothing objectionable in the form of either tbe question or the answer. 4. Motive and threats on part of accused; relevancy of evidence showing.— Evidence showing a motive on the part of the accused in committing the offense charged, and his threats against the prosecutor, though made several months before the commission of the offense, are relevant and admissible against him. From tbe Circuit Court of Wilcox. Tried before tbe Hon. JOHN K. Henry. Tbe indictment in this case charged that tbe defendants, Jacob Hinds and William Agee, “willfully set fire to and burned tbe gin-bonse of Leon Ratcliff, which, with tbe property therein contained, was then and there of tbe value of more than five hundred dollars.” Said William Agee having died, the defendant Hinds was put on his trial alone, and pleaded not guilty; and during his trial he reserved the following bill of exceptions : “ On tbe trial, there was evidence showing that the gin-honse burned, and about one bale of the cotton in it at the time, was the property of Leonidas Ratcliff, who was also known and called by tbe name of Leon Ratcliff; that about seven bales of tbe cotton burned belonged to one Hick Robinson, about two-tbirds of one bale belonged to one Riley, and tbe rest of the cotton burned amounting [amounted?] to about six bales; that tbe total value of tbe cotton in tbe gin-bonse at the time it was burned was about $700, and tbe value of tbe gin-bouse was about $1,000; and it was shown that tbe gin-house, with its contents, was burned on the night of the 19th December, 1875. Leonidas Eatcliff, wbo was tbe owner of the gin-house, was sworn as a witness on the part of the State, and was asked by the solicitor this question : ‘ What was the state of feeling between yon and the defendant at the time of the alleged burning of the gin-house?’ The defendant objected to this question, but the court overruled his objection; to which the defendant excepted. The witness answered, ‘that it was not goodwhich answer the defendant moved to exclude from the jury, and excepted to the overruling of said motion. The solicitor then asked said witness this question: ‘ State any facts showing the state of feeling between you and the defendant.’ The defendant objected to this question, but the court overruled his objection; and to this ruling of the court, also, the defendant excepted. The witness answered, that the defendant was in his employment in the year 1874, and was indebted to him at the end of the year in the sum of about one hundred dollars, and was about to remove his corn and fodder away from witness’ premises, to another place about two miles distant; that he (witness) sued out an attachment, and levied it on the defendant’s corn and fodder; that the case came on before a justice of the peace, and was compromised between him and the defendant at the trial, he taking a part of the corn, and releasing to the defendant the rest of the corn and the fodder; that this compromise still left the defendant indebted to him about fifty dollars; and that this attachment was sued out, and the trial was had, in January, or February, 1875. The defendant moved to exclude this answer of the witness from the jury, but the court overruled his motion; to which decision and ruling of the court, also, the defendant excepted. The State also introduced one Jim Miles as a witness, and asked him this question: ‘Whether he had any conversation with the defendant, before the burning of the gin-house, about a cow that Dick Eobinson said the defendant had killed, and which Dick Eobinson had told Mr. Echols about.’ The defendant objected to this question, but the court overruled his objection; to which decision and ruling, also, the defendant excepted. The witness answered, that the defendant said to him, Uncle Dick Eobinson told Mr. Echols that he (defendant) killed Mr. Echols’s yearling, and little Bill Eobertson told Mr. Eatcliff that he was hauling off his corn in the night, and Mr. Eatcliff put an attachment on his corn, ‘ and now, damn them, I’ll get even with them, if I have to burn up what they make in the gin-house, gin-house and all;’ and that he (witness) Said to him, ‘I would not do that.’ The defendant moved the court to exclude from the jury the said answer of the witness, but the court overruled the motion; to wbicb ruling and decision of tbe court, also, tbe defendant excepted.” S. J. Gumming, for tbe defendant, argued tbe several questions presented by tbe exceptions reserved as above stated, and also insisted tbat there was a fatal variance between tbe averment and proof as to tbe name of tbe owner of tbe building; citing to tbis point tbe following authorities: 2 Bishop on Criminal Procedure, §§ 36, 718; Qlanfidd’s case, 2 East, P. 0. 1034; Martha v. The State, 26 Ala. 72; Willis v. People, 1 Scam. (lb.) 399; State v. Fish, 3 Dutch. N. J". 323; People v. Myers, 20 Cal. 76; Graham v. The State, 40 Ala. 659; Boles v. The State, 46 Ala. 204; Davis v. The State, 52 Ala. 357; 3 Greenl. Ev. § 22. JOHN W. A. Samfokd, Attorney-General, with whom was B. HOWARD, for tbe State, cited Boscoe’s Grim. Ev. 95, 967; Burrill’s Cir. Ev. 281-3, 290,336; Johnson v. The State, 17 Ala. 625 ; Moles v. The State, 26 Ala. 31; Donnell v. Jones, 13 Ala. 490; Jones v. Tait, 8 Porter, 476; Townes dh O’Brien v. Alford & Butler, 2 Ala. 378. [MAJORITY — MANNING, J. —] MANNING, J. — No exception was taken to any charge given by tbe court to tbe jury in tbis cause, or to a refusal of tbe court to give any charge asked to be given on behalf of defendant. It is therefore to be presumed, tbat tbe instructions of tbe circuit judge fairly and fully presented tbe case in all proper aspects, and in the light of all tbe evidence, to tbe jury for their consideration. The same testimony by wbicb it was proved tbat tbe gin-bouse tbat was burned, and some of tbe cotton therein, was tbe property of Leonidas Batcliff, shows tbat be “was also known and cabed by tbe name of Leon Batcliff,” to whom tbe indictment charges tbat tbe gin-bouse burned belonged. No objection was made to tbe introduction of tbis evidence; tbe bill of exceptions does not say tbat there was no other upon tbis point; and no exception is made to any charge given, or to the refusal to give any charge respecting it, in the Circuit Court. We do not, therefore, perceive any ground upon which tbis court can undertake to review the action or rulings of tbat court in relation to tbis matter. — See Franklin v. The State, 52 Ala. 414. Tbe objection to tbe form of tbe question put to one of tbe witnesses for tbe State whose property was burned— namely, “What was tbe state of feeling between you and tbe accused at tbe time of tbe burning ?” — was not web taken. Tbe question was not too leading; and if it were so, the ruling of the court allowing it, notwithstanding, would not b© subject to review and reversal in this court. The form and manner of interrogating a witness must be left in a great degree, if the evidence is relevant, to the discretion of the circuit judge. Nor was it necessary, as here contended, that, in the first question put on that subject, the inquiry should have been, as to the state of feeling on the part of the accused toward the witness, instead of the state of feeling between them. That was a matter which might be explained upon a further questioning, either on the examination in chief, or the cross-examination. The testimony of the witness Ratcliff was relevant, because it showed the existence of the causes, upon which the accused himself, according to the testimony of another witness, founded his subsequent threats to bum the property destroyed, and his expressions of animosity. Neither the overruling by the court of the objection to the question by which the evidence of this matter was brought out, nor the refusal of the motion to exclude the evidence, was erroneous. The relevancy of the testimony is obvious; its conelusiveness or sufficiency was a matter for the consideration of the jury. The same observations are applicable to the subsequent testimony tending to show ill feeling and threats on the part of the accused against Dick Robinson, whose cotton was in the gin-house, and was destroyed with it. Let the judgment of the Circuit Court be affirmed.