Hannigan v. State

TYSON, J. The defendant was indicted for the offense of arson in the second degree. The indictment laid the ownership of the store charged to have been willfully set- fire to and burned by defendant in the Alabama 'Consolidated Coal and Iron Company, ,a corporation. The evidence tended to show that the house set fire to was the property of that corporation and was used by it as a general merchandise storehouse and that it contained at the time property worth more than five hundred dollars. There was no other evidence of ownership. The following charge in writing was refused to defendant, to-wit: “The court charges the jury that if the State failed to prove by evidence of title, ownership of the property fired as charged i n the indictment, the jury cannot find the defendant guilty.” This charge is a copy of the one which the court held in Boles v. The State, 46 Ala. 207, was good and should have been given. The reason assigned was: “The form of the indictment requires this allegation. These are the forms prescribed by law. What they contain is required to be alleged. And what is required to be alleged must be proven.” It is true ownership must be alleged. “But at common law and under the statutes the offense is against the possession rather than the property. * * * The possession, not the tenure or interest in the property, must be described. * * * Therefore, at common law, the offense reaches only the dwelling-house, the indictment must have averred it was the house of him in whom the fee resided, if in fact another had the actual occupancy, even though the occupancy was wrongful.” — Adams v. The State, 62 Ala. 177; Heard v. The State, 81 Ala. 55; May v. The State, 85 Ala. 14. In Davis v. The State, 52 Ala. 357, the indictment was in the 'Code form, as here, and the ownership of the house was laid in Jennie Pharr, a servant of the owner of it, who was occupying it as her dwelling when the offense was committed. - The court said: “In 32 the case of The People v. Van Blaicum (2 Johns. 105), it is held, if one be indicted for burning the dwelling-house of another, it is sufficient if it be, in fact, the dwelling-house of such person. The court will not inquire into the tenure or interest which -such person has in the house' burned. It is enough that it was his actual dwelling at the time. In 1 Bish. Or. Pr., § 573, the rule is stated to be that the house must be laid to be the dwelling-house of the real occupier.” For aught appearing in Boles’ case, the State relied exclusively upon .title to the property to support the ownership laid in the indictment and not upon possession. Indeed, in that case, it does not appear there was any evidence of actual possession by the alleged owner, or any one else, of the property charged to have been set fire to. While the charge should have been given under the facts of that case, it was, to say the least of it, manifestly misleading, when applied to the facts of this one and was properly refused. The evidence discloses a positive confession by defendant of having committed the crime. This is not circumstantial evidence, but direct. — Burrell Cir. Ev., 495; Wills’ Cir. Ev., 16, 68; Green. Ev. (16th ed.), §§ 13, 14; Dennis v. The State, 118 Ala. 79; Greene v. The State, 97 Ala. 63. Charges 5 and 7 assert that the evidence against defendant was circumstantial and for that reason were properly refused.- — Cotton v. The State, 87 Ala. 75; Greene v. The State, supra; Dennis v. The State, supra. Affirmed.