¶1The statute makes the willful setting fire to or burning of a corncrib arson in the second degree, whether the crib contains corn or not. Therefore the motion in arrest of judgment was without merit, and was properly overruled. — Code 1896, §. 4337; Cook’s Case, 83 Ala. 62, 3 South. 849, 3 Am. St. Rep. 688; Thomas’ Case, 116 Ala. 461, 22 South. 666.
¶2The appellant’s counsel concede that the motion to exclude the evidence of the witness Ras Boyd is without merit, and state in their brief that they do not insist that the court erred in overruling the motion.
¶3It was competent for the witness Lee to testify that on the morning next after the night of the fire he found human tracks near the place where the crib was burned, and that the tracks led towards the house of the father of the defendant, where the defendant had spent the night. It was shown that the tracks were made by a No. 9 or No. 10 shoe, and that defendant wore such a shoe. — Hodge’s Case, 97 Ala. 37, 12 South. 164, 38 Am. St. Rep. 145. The weight of the evidence of the tracks, or whether such evidence should be accorded any weight, was a question for the jury to determine. The motion to exclude the evidence as to the tracks was properly overruled. Furthermore, the court was not bound to grant the motion, as it came too late. — Liner’s Case, 124 Ala-1, 27 South. 438.
¶4*86Tbe court properly refused charges 1 and 2 requested by the defendant. Neither of them asserts a proposition of law. — Mobile Light & R. Co. v. Walsh; 146 Ala. 295, 40 South. 560 (charge EE) ; Johnson v. State, 152 Ala. —, 44 South. 670.
¶5Charge 3, requested by the defendant, was properly refused. It singles out and gives undue prominence to a part of the evidence. — Crawford’s Case, 112 Ala. 1, 21 South. 214; Huskey’s Case, 129 Ala. 94, 29 South. 838; Teague’s Case, 144 Ala. 42, 40 South. 312.
¶6Clearly this is not a case in which the evidence affords no inference of the guilt of the defendant. Therefore the general affirmative charge was properly refused to defendant. — Hargrove’s Case, 147 Ala. 97, 41 South. 972.
¶7There is no error in the record, and the judgment of conviction is affirmed.
¶8Affirmed.