Opinion
8 Div. 329.
March 22, 1932. Rehearing Granted June 7, 1932.
Appeal from Circuit Court, Lawrence County; James E. Horton, Judge.
George L. Morris was convicted of arson in the second degree, and he appeals.
Reversed and remanded.
The opinion of Horton, Circuit Judge, on the motion for a new trial, is as follows:
"This cause is submitted upon the motion of the defendant to set aside the judgment of conviction against and to grant him a new trial. There are fourteen grounds of the motion. The only grounds which the court deems necessary to consider are the fourth and fifth grounds and the fourteenth ground. The fourth and fifth grounds are practically the same; that is that the verdict of the jury was against the great weight of the evidence. The fourteenth ground is based upon newly discovered evidence. The court will first consider the fourteenth ground, and the consideration of this ground will probably be sufficient to cover the fourth and fifth grounds. Newly discovered evidence is ground for a new trial, but the general rule is that applications for new trials for this cause are not favored. The general rule upon the subject is stated in 20 R. C. L. page 289, § 72. This text, after stating that applications on this ground are not favored by the court, and after defining the burden that is upon the applicant, states that: "The matter is largely discretionary with the trial court, and the exercise of its discretion will not be disturbed except in case of manifest abuse. This is also true in criminal cases.' The text thereupon states what must appear in order to warrant the granting of a new trial:
" 'In order to warrant the granting of a new trial on the ground of newly discovered evidence, it must appear (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; (5) that it is not merely cumulative, or impeaching.'
"The court will first consider the fourth and fifth requisites. The fourth requisite is that it is material to the issue. Paragraph 75 defines what is meant by material to the issue: 'The newly discovered evidence must go to the merits and not merely to discredit or impeach a former witness.' Further in section 76 the text says: That a new trial should not be granted where the newly discovered evidence only impeaches the testimony of an adversary, or a witness of the adverse party, unless it is of such a nature that a different result must necessarily follow. Besides that, the general rule is that merely cumulative evidence is not sufficient to cause a new trial to be granted.
"An examination of the newly discovered evidence presented by the motion for a new trial discloses that this evidence is all of an impeaching and cumulative nature. In fact it may be said it is all both cumulative and impeaching. The purpose of this new evidence is to impeach the testimony of the witness for the State, Henry Ward Holland; that is, to show that certain persons induced him to testify by offering him a reward, and that before the date of the burning that he tried to procure affiant Steele to set fire to the building, stating that Dr. Morris was after him for a settlement. This evidence, as the court has stated, tends to impeach the witness Henry Ward Holland, to show that he had a motive to swear falsely, and further that he was trying to get some one to burn the building, and that the defendant Morris was after him for a settlement and threatening him with arrest. As to tending to show that Henry Ward Holland himself burned the building, he himself admits that he burned the building, and all the evidence for the State, and the entire insistence of the State, is that Henry Ward Holland was the incendiary. Besides that, Morris himself states that he was after him for a settlement, and had been down during the week before the fire insisting upon a settlement, and this evidence was given in for the purpose, and apparently the sole purpose, to show that Henry Ward Holland burned the building of his own motion without the inducing of the defendant Morris. This evidence is necessarily cumulative and impeaching. As to the other evidence impeaching him, it is hard to see how the witness Henry Ward Holland could be placed in a worse light than the evidence already had placed him in. The jury had these facts all before them. He is shown to be a self-confessed perjurer and self-confessed incendiary; he is shown to have made a statement immediately after the fire, and he is shown to have made a statement after he was carried to Moulton, stating in full his burning of the store, and of the part that the defendant Morris had in this burning. It is further shown that he afterwards, as the court remembers, at the instance of the defendant Morris, or at least, he is shown to have made a statement denying entirely his part in the fire and exonerating Morris entirely from any part in the causing of the fire. This sworn statement was introduced in evidence. Next he is shown to have sworn upon his own trial that he did not do the burning and entirely exonerating himself from the burning, and after all this the defendant Morris has introduced witnesses stating that Henry Ward Holland was unworthy of belief. So it seems that any additional evidence now trying to impeach him could add but little weight to that already introduced. All this did not make him an incompetent witness, but the jury could scarcely have placed any weight to any of his evidence, unless it was clearly corroborated. The court is, therefore, of the opinion that the newly discovered evidence is lacking in the fourth and fifth grounds stated in the text quoted from. The court is of the opinion that it comes within the second and third grounds of this text. As to the first ground the court is of the opinion that the evidence is not sufficient that the result of the trial would probably have been changed. In 29 Cyc. page 899 the text states: The newly discovered evidence must be material or important to the moving party. Evidence on a matter collateral to the issue is seldom good for a new trial. It is not sufficient that the new evidence had it been offered on the trial might have changed the verdict. According to the weight of authority it must be sufficiently important to make it probable that a different verdict will be returned on another trial. According to some authorities, the new evidence must be of a decisive or conclusive character or such as to render a different result reasonably certain. A new trial will be granted more readily where the verdict appears to be against the weight of the evidence, or where it is quite doubtful under the evidence.' In line with what has already been stated, the Supreme Court of Alabama in Southern Railway Company v. Wildman, 119 Ala. 565, 24 So. 764, held that newly discovered evidence of contradictory statements of the adverse party and that different testimony had been given in another suit respecting the same matters would not warrant a new trial. While the court does not feel it necessary to consider the question whether or not the verdict of the jury was against the great weight of the evidence, and as to whether or not the newly discovered evidence would probably change the result if a new trial were granted, nevertheless the court is of the opinion that the evidence was certainly sufficient upon which a jury could base its verdict.
"There is sufficient evidence to show that the defendant had a number of musical instruments; that these musical instruments were at Decatur, some in a store and some in his garage; that they were not insured at their location in Decatur. It may be true that the buildings in which these instruments were housed were such as to make it unlikely that they would be destroyed by fire; nevertheless they were uninsured. That the defendant procured a store in Town Creek, Alabama, in which to place these instruments for the ostensible purpose of sale; that he had never been to Town Creek until after the instruments were carried down there, and had only passed near there once on a trip to Leighton, Alabama; that he rented the store for a single month; that he placed in charge of this property one Holland, whom he had known for some time, and who bore a general bad character; that in spite of his character he placed him in charge of these goods, either for sale or for the purpose of being burned; that he was solicitous about getting insurance upon the goods. The evidence further shows that Holland called up the number of his 'phone at Decatur, Alabama, on the 17th and 19th of December, and repeated over the telephone a cryptic message. This message is testified to by the telephone operator at Town Creek, Alabama. While there has been evidence offered by the defendant tending to show he did not receive the message, and while he denies he received the message, nevertheless the message which his witnesses testified was delivered was a different one from the cryptic message. The father of Ward Holland testifies that the defendant on the day of the fire told him he had talked to Ward Holland and he would be home the next day. There is sufficient evidence without the evidence of the witness Ward Holland to show that the fire was of an incendiary origin. Next we find that James Cox goes into the defendant's store the night of the fire, and told the defendant 'that they tell me Town Creek is burning up down there and if he had heard anything about it' and the defendant stated, 'No, I haven't heard anything about it.' The defendant himself states in his testimony that he didn't know his store at Town Creek had burned up until the sheriff came to arrest him. A strange indifference to the welfare of his property. Next the evidence shows that although the witness Holland had been arrested and although he had implicated the defendant in the burning, charging the defendant with procuring an arson, yet we find him stating that, if the State's witnesses speak the truth, he is going to help Ward Holland out if it cost him $10,000.00. Even granting that the State's witnesses have not spoken truthfully in regard to this matter, we find the defendant stating that he told Mrs. Holland if there was some way reasonable he could help him he possibly would help him.
"While the court has only attempted to cite the theory of the State, and has cited this for the purpose only of showing that the verdict of the jury was not against the great weight of the evidence, and that even if a new trial were granted the result probably would not be changed by reason of the newly discovered evidence. The court is, therefore, of the opinion that the motion for a new trial should be denied. It is, therefore, ordered and adjudged by the court that the motion for a new trial be, and the same is hereby denied."
W. H. Long and T. C. Almon, both of Decatur, for appellant.
It was error to permit the state to introduce admissions alleged to have been made by defendant to witness Holland without showing same to have been voluntarily made. Poarch v. State, 19 Ala. App. 161, 95 So. 781; Holmes v. State, 22 Ala. App. 373, 115 So. 849; James v. State, 24 Ala. App. 322, 135 So. 405; Bachelor v. State, 216 Ala. 356, 113 So. 67; Carr v. State, 17 Ala. App. 539, 85 So. 852. A defendant cannot be convicted on the uncorroborated testimony of an accomplice. Ash v. State, 81 Ala. 76, 1 So. 558; Belser v. State, 16 Ala. App. 504, 79 So. 265. Testimony corroborating the testimony of an accomplice should not be admitted until the corpus delicti is proved. There was no proof of a conspiracy. Patterson v. State, 202 Ala. 65, 79 So. 459; Motes v. State, 20 Ala. App. 195, 101 So. 286; McAnnally v. State, 74 Ala. 9; Lotz v. State, 23 Ala. App. 496, 129 So. 305. Testimony of witness Taylor as to conversation over telephone by defendant and Holland was erroneously admitted. She could not, by her testimony, have known that defendant was the one who had the conversation. Kirby v. State, 16 Ala. App. 467, 79 So. 141; State v. Peterson, 109 Wn. 25, 186 P. 264, 8 A.L.R. 653; W. T. Rawleigh Med. Co. v. Hooks, 16 Ala. App. 394, 78 So. 310; Davis v. Arnold, 143 Ala. 228, 39 So. 141. There was no dispute as to the location of the burned property. The photograph offered by the state was erroneously admitted. Crenshaw v. State, 207 Ala. 438, 93 So. 465; Rollings v. State, 160 Ala. 82, 49 So. 329; Greenwood Cafe v. Walsh, 15 Ala. App. 519, 74 So. 82; Boyette v. State, 215 Ala. 472, 110 So. 812. The evidence of the telephone operator as to the conversation by defendant with Holland was illegal. Acts 1915, p. 321. The motion for a new trial should have been granted. Inman v. State, 22 Ala. App. 344, 115 So. 704.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The indictment in this case was returned at a special term of the circuit court of Lawrence county on January 20, 1931, called for the purpose of investigating the particular crime of which defendant and another are charged; the defendant received notice of the indictment January 22, 1931, at which time he made bond for his appearance in the sum of $2,000; about 2 o'clock p. m. of the following day defendant was rearrested and kept in jail at Moulton, Ala., until 2 p. m. January 24, 1931, and his case was set for trial January 26th, and the trial was had on January 27th; many of defendant's witnesses live in Morgan county, which is also the residence of defendant. Defendant moved the court for a continuance setting up the above facts and alleging that he had not sufficient time to prepare his defense. The motion was overruled, and defendant excepted.
Assuming the above facts to be true, there appears no abuse of the discretion resting in the trial judge in whom is lodged a discretion in the granting of continuances, not to be reviewed except in cases of abuse, which must clearly appear. Higdon v. State, 20 Ala. App. 649, 104 So. 913; Ex parte Higdon, 213 Ala. 418, 104 So. 914.
The defendant objected to being put to trial, for the reason that several of the veniremen drawn and summoned as jurors for the special term of the court at which defendant was to be tried were residents of Town Creek, the village in which was located the building alleged to have been burned. There is no allegation or proof that these jurors were otherwise disqualified. The ruling of the court on this objection was free from error.
Mrs. Edna Taylor, the telephone operator at Town Creek, was allowed to testify to two telephone conversations between defendant and Henry Ward Holland, the party who was jointly indicted with defendant, one of which took place on December 17th and the other on December 19th, which latter was the day of the fire. There was sufficient evidence tending to prove that defendant was the party being talked with by his codefendant to make these conversations admissible, and the conversations testified to were admissible as circumstances tending to show a prearrangement between the parties for defendant to do some act, and the whole was a circumstance to be weighed by the jury along with all the evidence in the case, for them to determine whether in the fact proven there was some natural, necessary, or logical connection between it and the inference or result which it was designed to establish. 8 R. C. L. p. 180, par. 172.
The contention of the state is that this defendant had a piano and a number of Victrolas which he had stored in different places in Decatur, Ala.; that he employed Holland, his codefendant, to concentrate these instruments at Town Creek and, when they were placed there and insured to their full value, to burn them up, that defendant might collect the insurance on them. Making this proof it was relevant to show where the instruments were stored in Decatur; their condition; their value, etc.; that defendant contracted for the rent of the house at Town Creek for one month, and immediately began negotiating for fire insurance, far in excess of the value of the property insured; and that he did insure the property for an amount in excess of its value, paying a rate of $10 per $100 of insurance.
Over objection and exception of defendant, the state was allowed to prove by the judge of probate of Lawrence county that his office had received a mortgage for record either from Morris Drug Company or this defendant, describing a large number of musical instruments, and purporting to be signed by Ward Holland, and that the mortgage had been withdrawn before same had been recorded. What the purpose of this evidence is we do not know, but, whatever it is, the mortgage and its contents were not sufficiently identified to make it relevant as evidence. However, in view of the admitted interest of both Morris and Holland in the property destroyed, we can see no injury to this defendant by and on account of the court's ruling on this question.
Exception is reserved by defendant to the admission or statement made by him to W. F. Holland in defendant's store in Decatur on January 19th after the fire. It is true that the formal predicate was not laid to the witness W. F. Holland as a preliminary to his testimony of the conversation between him and defendant. But the facts and circumstances surrounding the parties at the time show that no improper influences induced the statement. Where this appears from the evidence, the statements of a defendant, though against interest, are prima facie voluntary and admissible. Williams v. State, 4 Ala. App. 92, 58 So. 925; Id., 177 Ala. 34, 58 So. 921, Ann. Cas. 1915A, 584.
Henry Ward Holland, a witness for the state, is the person who actually set fire to the house charged to have been burned. This witness is not only an accomplice, but is a man of bad character, unworthy of belief, and a self-confessed perjurer. His testimony must be dealt with in view of the foregoing facts, and the law would not permit a conviction to stand upon his uncorroborated testimony. But, where there is substantial corroboration, it is for the jury to say whether his testimony is true or false. In this particular case Holland is corroborated by the testimony of his father, W. F. Holland, and that of the telephone operator at Town Creek, touching a telephone conversation between defendant and Holland on December 17th and December 19th, wherein Holland talked with defendant in a prearranged code. In addition to the foregoing, there are many facts and circumstances tending to cast suspicion on defendant regarding this fire; for instance: Defendant had been engaged in the sale of musical instruments in Decatur; he closed this business in 1929, evidently because it was unprofitable; he had a large number of these instruments, both new and secondhand, left on his hands; these he had stored in his garage and other places in Decatur; at this time he had no insurance on the instruments; in December, 1930, he had Holland, a man of notoriously bad character, to rent a wooden building in a small village twenty-five miles away, for one month; he had, himself, never been to the town; he delivered possession of these instruments to this man Holland, giving him entire control over them and the rented store; he never went to the place but once, but immediately he began to be diligent in the procurement of fire insurance, payable to himself, at the unusual rate of 10 per cent. premium; according to the testimony of several state witnesses, the amount of insurance procured was largely in excess of the value of the property destroyed. These facts, while insufficient in themselves to fasten guilt upon defendant, point with unerring directness to defendant, and none other, as the one person who would be financially benefited by the fire. There was sufficient evidence that the fire was of incendiary origin to admit the testimony of Holland, who confessed the burning, and the foregoing recited facts were sufficient corroboration upon which to base a verdict of guilt as against this defendant. The corroboration required by section 5635 of the Code of 1923 must be of some fact which will strengthen the testimony of the accomplice, and this is accomplished in this case by the proof of the facts above related. Segars v. State, 19 Ala. App. 407, 97 So. 747; Malachi v. State, 89 Ala. 134. 8 So. 104.
Under the facts in this case, refused charge A was misleading, and was properly refused. The principle involved in the charge was fully covered by the court in its oral charge.
The photograph, identified as the picture of the place where the building was burned, was relevant as tending to show that the building was burned, and, while this was merely cumulative evidence, that fact did not render it incompetent.
Count 1 of the indictment follows the form laid down in the Code, § 3290, and is not subject to the grounds of demurrer assigned.
The testimony of Mrs. Taylor is objected to on the ground that, by act of the Legislature 1915, p. 321, § 1, operators or employees of any telephone or telegraph lines operated in the state of Alabama are forbidden to communicate any message sent or received over said lines, without the consent of the sender or receiver. We express no opinion as to what effect this statute might have in civil matters, but we do hold that it has no application to the investigation of crime, by and through the agency of the courts.
Other rulings of the court on the admission of testimony were either free from error or the rulings were without injury to the defendant's cause.
On the question of the ruling of the trial court in overruling defendant's motion, we here refer specifically to the very excellent analysis made by the trial judge in his written opinion filed with his judgment on the motion. The statement of the law in his opinion is correct, his reasoning is sound, and, when we give to his judgment the presumption of correctness to which it is entitled under the law, his ruling on the motion must be held to be without error.
Finding no error in the record, the judgment is affirmed.
Affirmed.
On Rehearing.
In the original opinion in this case we held that there was sufficient evidence tending to prove that the defendant was the party being talked to by his codefendant to make the conversations admissible, as against the objection that the testimony of the long-distance operator who listened in on the conversations was hearsay. This evidence did not rest alone on the testimony of Mrs. Taylor, the operator. She knew and could testify that Holland, the codefendant, was at her end of the line; she heard and could testify as to what he said to somebody at the other end of the line who answered to the call for defendant, from defendant's phone in Decatur; she could and did testify that to the best of her knowledge the same party who talked on the 17th talked again with Holland on the 19th. The published directory for Decatur showed defendant's number to be 8; that was the number called for by Mrs. Taylor both on the 17th and 19th. Defendant admitted to W. F. Holland that he had talked to codefendant Holland over the phone on the 19th. No. 8 telephone was located in defendant's store, and he and a boy by the name of Ivans testified that defendant was in his store all of the afternoon and night of the 19th until 10 o'clock at night. Brasher, a witness for defendant, testified to a long-distance message from Holland on the 19th, coming to defendant's phone from Town Creek, but this witness said defendant was out and that he (Brasher) did the talking. Ward Holland, the codefendant, testified to both telephone conversations with defendant, but of course, his testimony in this particular must be corroborated. That is done by defendant's admission to W. F. Holland that he had talked with Ward Holland on the 19th and the testimony of Brasher that Ward talked to defendant's phone on the 19th and by the testimony of Mrs. Taylor that Ward Holland called over long distance on the 17th and 19th on reverse calls, which were accepted by the party at Decatur answering to the name of defendant. The question of the identity of defendant at the Decatur end of the line was for the jury. There being evidence tending to prove that the defendant was at the Decatur end of the line in conversation with his codefendant, Ward Holland, on December 17th and 19th, the evidence of the conversation was admissible. Kirby v. State, 16 Ala. App. 467, 79 So. 141.
Complaint is made that the court in the original opinion did not discuss the testimony of Mrs. Ward Holland; it being claimed that she was allowed to testify to incriminatory statements made to her by defendant without a proper predicate having been laid to show that such statements were voluntary.
The facts and circumstances surrounding the conversation between Mrs. Ward Holland and defendant tend to show that she went to defendant's drug store; that they talked about Ward Holland and his arrest; that defendant said he would do all he could to get him (Ward) out; that he ought to because Ward had been working for defendant. "He said he would spend everything he had to get him out. He said he would hire lawyers to get him out." The conversation proceeded in the most friendly manner, and the evidence indicates nothing but confidence between the two. There is not the slightest evidence of force, duress, or coercion. Confessions and admissions in the nature of confessions, to be admissible, must be voluntary, and that they were voluntary must appear. This is usually shown by an examination of the witness on voir dire, as to promises, threats, etc. Where, however, the facts and circumstances under which they were made affirmatively show that there were no improper influences proceeding from the person, or from the surrounding circumstances, the confessions or admissions are prima facie voluntary, and are admissible. Williams v. State, 4 Ala. App. 92, 58 So. 925; Hornsby v. State, 94 Ala. 55, 10 So. 522; Stone v. State, 105 Ala. 60, 17 So. 114; Fincher v. State, 211 Ala. 388, 100 So. 657; Patton v. State, 197 Ala. 180, 72 So. 401.
It is insisted that the witness Harbin should not have been allowed to testify as to the value of the stock of musical instruments destroyed in the fire. This witness testified that he inspected the stock before the fire, and that he knew its approximate value, and that he had experience in inspecting such property for the purpose of writing insurance contracts. This witness was competent to testify as to the value of the stock.
The indictment is substantially in the form prescribed in Act of Legislature 1927, p. 552 et seq., and is sufficient.
However, the court is of the opinion, after reading and considering the entire record en banc, that the defendant's motion for a new trial should have been granted on the fourteenth ground of said motion. The law contemplates that every citizen charged with crime shall have a speedy trial, but without such undue haste as will force a trial without a reasonable time for preparation. Under the facts of this case, including the circumstances surrounding the trial, this court feels and so holds that the defendant has not received such a trial as is contemplated by the Constitution. Milligan v. State, 208 Ala. 223, 94 So. 169. For the error of the trial court in refusing the motion for a new trial on the fourteenth ground, the judgment of affirmance is set aside, and the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.