[Paradise et al. v. The State.] 2. Same; what admissible. On an indictment for murder where the father of the defendants is introduced by them as a witness, and where there is evidence of bad feeling between witness and deceased, his statment made to another witness, on the day before the killing, that the deceased came to his house and tried to raise a fuss with him and that he would "have him attended to" is relevant and material evidence as tending to show that he himself was implicated in the offense with which his sons are charged. 3. Same; how proved.-Where on an indictment for murder the father of the defendants is introduced by them as a witness, in order to show his credibility and interest, it is proper for the State to prove by witness himself on crossexamination relevant statements made by him prior to the killing; and on his denying them, it is entirely competent to prove them by the person to whom they were made. APPEAL from the Circuit Court of Jackson. The appellants, James and Isaac Paradise, were indicted for the murder of George Towers, were convicted of murder in the econd degree and sentenced to the penitentiary for ten years. The evidence for the State tended to show that as the defendants were passing by the field where the deceased was at work George Towers got into a dispute with Isaac Paradise; that Jim Paradise tried to prevent the fuss and, failing to quiet them, stepped back and said that if they were going to fight, they could fight it out as they pleased; that at this time Towers was standing with his hand on his hoe handle; that Isaac Paradise just after a statement made by him, threw a rock, which was taken from his hip pocket, and hit Towers with it on the back of his head; that Towers dodged his head when the rock was thrown, and immediately Jim Paradise shot and killed him. The evidence for the defendants tended to show that the fatal shot was fired as deceased was threatening to hit each of the defendants with his hoe, saying that he intended to kill them. There was evidence introduced in the trial tending to show that the day before the homicide, the deceased, Towers, rode up to the house of the defendants and said to their father, David Paradise, that he, Towers, wanted to talk with David Para [Paradise et al. v. The State.] dise about reporting him for playing cards; that David Paradise denied having made such statement, whereupon Towers said he could prove it and cursed David Paradise. David Paradise was introduced as a witness for the defendants and on his cross-examination the solicitor asked him the following question: "Did you not go to Billy Smith's on the evening before George Towers was killed and say that George Towers came very near whipping you that day, but that you would have him attended to for it, or words to that effect?" The defendant objected to this question upon the ground that it called for illegal, irrelevant and incompetent evidence. The court overruled the objection, and the defendant duly excepted. David Paradise answered that he did not. The State introduced Billy Smith, and asked him if David Paradise did not make the statement contained in the question just set out above. The defendant objected to this question, because it called for illegal, irrelevant and incompetence evidence. The court overruled the objection, and the defendant duly excepted. The witness answered that he did. The defendant moved to exclude the evidence upon the same grounds, and duly excepted to the court's overruling the motion. These rulings of the court constitute the only questions reviewed on the present appeal. TALLY & HOCKWORTH, for appellant, cited Davis v. State, 92 Ala. 20 (27); Stone v. State, 105 Ala. 60 (69); Jones v. State, 115 Ala. 83; State v. Duncan, 6 Ire. 236; State v. Haynes, 71 N. C. 79; State v. Davis, 77 N. C. 483; State v. Bishop, 73 N. C. 44; State v. White, 68 N. C. 158; Cookman v. State, 5 W. Va. 510; Walker v. State, 6 Tex. Ct. App. 576. CHAS. G. BROWN, Attorney-General, for the State. MCCLELLAN, C. J. David Paradise is the father of defendants. He was introduced by them as a witness and testified to material facts in their behalf. It was competent for the State to show, as going to his interest in the case and credibility, that he himself was [Hannigan v. The State.] implicated with his sons in the commission of the offense for which they were being tried. His statements to the witness Smith tended to prove such implication. They were relevant and material evidence in the case. It was proper for the State to prove the statements by David Paradise himself on cross-examination, and upon his denying that he had made them, it was entirely competent to prove them by Smith; the testimony of the latter going both to prove the substantive material fact that the statements were made and to contradict Paradise as a witness. We have considered the other points raised by the appellants on the record, and find no error in them; but as counsel do not discuss them in their brief, we deem it unnecessary to enter upon a discussion of them here. Affirmed. Hannigan v. The State. Indictment for Arson. 1. Arson; sufficient evidence as to ownership. - Where an indictment for arson lays the ownership of the store alleged to have been burned in a corporation, and the evidence shows that the house set fire to was the property of said corporation and was used by it as a general merchandise storehouse, such evidence sufficiently shows the ownership as ar leged in the indictment, to support a judgment of conviction; and a charge requested by the defendant is properly refused, which instructs the jury that "if the State failed to prove by evidence of title ownership of the property fired, as charged in the indictment, the jury can not find the defendant guilty." 2. Evidence; when not circumstantial.-Where on the trial of a criminal case, the evidence discloses a positive confession by defendant of having committed the crime charged, such evidence is direct and not circumstantial; and, therefore, charges requested by the defendant in such case, which assert that the evidence against the defendant was circumstantial, are erroneous and properly refused. [Hannigan v. The State.] APPEAL from the County Court of Tuscaloosa. The appellant in this case was tried under the following indictment: "The grand jury of said county charge that before the finding of this indictment Dan Hennigan alias Dan Hannigan, willfully set fire to or burned a store of the Alabama Consolidated Coal and Iron Company, a corporation, which with the property therein contained was worth more than five hundred dollars, against the peace and dignity of the State of Alabama." The defendant was convicted of the offense charged, and sentenced to the penitentiary for two years. The facts of the case are sufficiently stated in the opinion. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (4.) "The court charges the jury that if the State failed to prove by evidence of title, ownership of the property fired as charged in the indictment, the jury can not find the defendant guilty." (5.) "The evidence against the defendant is circumstantial, and before you can find him guilty on such testimony, the proof must be very strong and cogent, so much as to exclude every reasonable doubt and probability of his innocence." (7.) "The evidence on the part of the State against the defendant is circumstantial, and before you can find him guilty on such testimony, you must believe from the evidence beyond all reasonable douby and to a moral certainty that no other person could have done the burning." DANIEL COLLIER, for appellant, cited Boles v. State, 46 Ala. 207; Overstreet r. State, 49 Ala. 30; Pierson v. State, 99 Ala. 151; Carson v. State, 50 Ala. 138. CHAS. G. BROWN, Attorney-General, for the State. Charge 4 requested by the defendant was not a correct exposition of the law, and had a tendency to mislead. For this reason it was properly refused. - Adams v. State, 62 Ala. 189; Childress v. State, 86 Ala. 57. [Hannigan v. The State.] Charges 5 and 7 were properly refused. Cotton v. State, 87 Ala. 75; Rain v. State, 88 Ala. 91; Greene v. State, 97 Ala. 59; Dennis v. State, 118 Ala. 72; Brown v. State, 29 So. Rep. 200; Yarbrough v. State, 115 Ala. 92; Allen v. State, 111 Ala. 81. . 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 in 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 |