Avant v. State

• Decision Date: 13 November 1893
• Court: Mississippi Supreme Court
• Parties: HILLIS AVANT v. THE STATE

13 So. 881

71 Miss. 78

HILLIS AVANT v. THE STATE

Supreme Court of Mississippi

November 13, 1893

FROM the circuit court of the second district of Panola county HON. EUGENE JOHNSON, Judge.

The case is stated in the opinion.

Judgment Reversed.

P. H Lowrey, for appellant.

It was necessary to prove ownership as laid in the indictment. When the proof developed that the house did not belong to S. E Holcomb, the state might have amended, but did not do so. The variance is fatal. 1 Am. Crim. Law, § 556; 66 Miss. 33; 68 Ib., 348; 69 Ib., 395. The fact that S. E. Holcomb was in control and possession of the cotton-house is insufficient. The indictment does not describe the house as being in his control, but as being his property. The second instruction was, therefore, erroneous, in so far as it permitted a conviction whether the house was the property of S. E. Holcomb or not.

The instruction is erroneous, also, in authorizing a general verdict of guilty, if the jury believe that the cotton burned was the property of S. E. Holcomb. This, in substance, instructed the jury to disregard the indictment so far as it applied to the house, and convict if it believed the accused burned the cotton, although the indictment is not for the burning of the cotton.

Frank Johnston, attorney-general, for the state.

The text-writers agree that the house must be shown to be that of another than the accused, but they are silent as to whether it is essential to prove that it belonged to any certain other person. They admit that the rule of evidence in an indictment under a statute varies from that under common law. Roscoe on Crim. Ev., 247. I submit that in the crime of arson it is not necessary to prove ownership as alleged, if the property burned is otherwise identified. As the offense is against the possession, it is essential to prove that person in possession who is alleged in the indictment to be the owner. 2 Starkie on Ev., 50. See also 3 Archbold on Crim. Pl. & Prac., 488; 3 Greenleaf on Ev., § 54.

Under recent English statutes, it is held that an allegation of ownership is not necessary; or, if made, it need not be proved. 2 Bishop on Crim. Pro., § 36; 12 Cox on C. C., 148.

The only reason for the rule rests in the necessity of identifying the property. To do so by alleging ownership is common method. 1 Bishop on Crim. Pro., 581. This, however, is only one means of identification.

The second instruction was correct. It charged that the jury must believe that the house burned was the same as that alleged in the indictment to belong to S. E. Holcomb.

Argued orally by the attorney-general.

OPINION

COOPER, J.

The appellant appeals from a conviction for arson. The indictment charges that "Hillis Avant, late of the county and district aforesaid, on the sixteenth day of May, 1892, in said county and district, did unlawfully, wilfully, feloniously and maliciously set fire to and burn a certain cotton-house, worth ten dollars, in which was then and there one thousand pounds of seed-cotton, worth fifteen dollars, the said cotton-house and cotton being then and there the property of S. E. Holcomb, with the intent of him, the said Hillis Avant, to wilfully, feloniously and maliciously injure him, the said S. E. Holcomb."

On the trial the fact was developed that the house alleged to have been burned was the property of the father of S. E. Holcomb; that it was burned on the night of January 25, 1891, and that the cotton it contained was the cotton of S. E. Holcomb. All that appears in evidence in relation to the ownership and possession of the house is the following, which is taken from the testimony of the witness, S. E. Holcomb: "The land belonged to my father, but I worked it the year before the pen [house] was burned. The cotton in the pen belonged to me. My brother helped to make it, but I bad bought his interest before the cotton was burned. My brother and I worked the land together."

On the request of the state, the court instructed the jury, inter alia, as follows:

"2. The court charges the jury that it makes no difference if the house belonged to Holcomb's father, if you further believe from the evidence, beyond a reasonable doubt, that it is the identical house as alleged in the indictment, and S E. Holcomb had control, and not some other house; or, if you believe from the evidence, beyond a reasonable doubt, that the cotton in the house was the cotton of S. E. Holcomb,...