Byrd v. State
| Decision Date | 24 October 1932 |
| Docket Number | 30220 |
| Citation | 143 So. 852,165 Miss. 30 |
| Court | Mississippi Supreme Court |
| Parties | BYRD v. STATE |
1 ARSON.
Circumstantial evidence showing beyond reasonable doubt that house was burned by persons employed by defendant to burn it held sufficient to sustain arson conviction (Code 1930, section 785).
2. CRIMINAL LAW. One convicted of arson was properly sentenced under statute in effect when arson was committed, instead of under repealing statute enacted before trial prescribing lighter penalty, absent contrary provision in repealing statute (Code 1930, sections 785, 1361; Laws 1932, chapter 272).
Sentence was properly imposed under Code 1930, section 785, in effect when arson was committed, instead of under Laws 1932, chapter 272, repealing Code 1930, section 785, and prescribing lighter penalty for arson, which repealing statute was enacted before the trial, in view of Code 1930, section 1361 providing that no statutory change shall affect punishment for any crime committed prior to its enactment, unless otherwise therein provided.
Suggestion Of Error Overruled November 21, 1932.
APPEAL from circuit court of Harrison county.
HON. W. A. WHITE, Judge.
J. S. Byrd was convicted of arson, and he appeals. Affirmed.
Affirmed.
Luther Maples and R. O. Bickerstaff, both of Gulfport, for appellant.
Before the appellant can be convicted of a conspiracy to burn the said house, his co-conspirators must be produced and shown to have committed the act that was conspired to have been committed.
The rule as laid down in Ruling Case Law is to the effect that to form a conspiracy two or more persons must conspire together to commit the unlawful act, and that the commission of any act by any one of the conspirators other than the one conspired to be committed would not hold the others liable for a commission of the latter offense, and that the conspiracy to commit the offense without the actual commission of it would not be the completion of a conspiracy.
5 R. C. L. 160; People v. Morlay, 87 P. 84; People v. Trimm, 39 Cal. 77.
It is not only the established rule of law that there must be a valid existing fire insurance contract on the property destroyed by fire, but the rule goes further that the burning must be with the intention of injuring the insurer, and that there must be shown by the state, by competent evidence, that the one who committed the offense and those who conspired with him to commit the offense would have profited in some way by the burning of said property, or that they had some motive for the burning of the said property. In other words, it is incumbent upon the state to show a motive for the committing of any offense such as charged against the appellant, Byrd, and certainly there was none shown in this cause.
17 A.L.R. 1180, 2 R. C. L. 519-520.
The state failed to show and to prove the two essential elements of corpus delicti; that is to say the house in question was wilfully, maliciously and feloniously set on fire; and that the appellant either set the said house on fire or procured or acted in connection with the party or parties who actually set fire to said house, if it was set fire to by any one.
State v. Brown, 88 S.E. 21; L.R.A. 1916D 1295; People v. Lee, 204 N.W. 742.
Luther Maples, of Gulfport, for appellant.
Under the authority as laid down in the case of Osborne v. The State, 99 Miss. 422, the testimony of Murrah was not competent to show that there was a conspiracy between himself and the appellant herein to burn said house; that the state was required to prove by other competent witnesses and evidence that such a conspiracy existed before this testimony would be admissible, and it would have been necessary to show further that the conspiracy was revealed before the commission of the act.
Gillam v. State, 62 Miss. 457; Wilson v. State, 71 Miss. 880; Brown v. State, 72 Miss. 990; Foster v. State, 92 Miss. 257.
Section Six (6), page 587, the Laws of 1932, specifically repeals sections 780-781, 782, 783, 784, 785 and 786 of the Laws of 1930 and also all laws in conflict with this law.
Section 1361 of the Code of 1930 was intended for the purpose of preventing the Legislature from repealing criminal laws to prevent the punishment of those who might have sufficient influence to have such laws repealed by the legislature, but section 1362 of the Code of 1930 was intended to take care of just such a case as this one. The trial judge, after due consideration of the law involved in this case, was of the opinion that an error had been committed and for that reason admitted the appellant to bail pending his appeal. It will be further noted that in this case the court imposed the minimum penalty as provided by the old law and it is reasonable to assume that the court would have imposed a much less sentence under the facts had he been permitted to do so by the law. We submit that if there is no other error in this case that it should be reversed to the lower court with authority to sentence the appellant in accordance with the law existing at the time when the sentence was imposed, the other law having theretofore been repealed by the Legislature of 1932.
W. D. Conn, Jr., Assistant Attorney-General, for the state.
In a case of arson it is quite well settled that the corpus delicti is (1) proof of the burning of the house, or other thing burned and (2) that the burning was caused by criminal agency.
Pitts v. State, 43 Miss. 472; Spears v. State, 92 Miss. 613, 46 So. 166, 16 L.R.A. (N.S.) 285; Whittaker v. State, 142 So. 474.
If the evidence for the state is to be believed and that is a question, of course, for the jury to decide, the facts, as detailed in the statement of same, preceding this argument, clearly demonstrated the proposition that there was a conspiracy existing between appellant and his two co-indictees, Robert Murrah and Will Lawrence. A conspiracy, like any other controverted fact, may be proved by the acts of parties, or by circumstances, as well as their agreement.
Street v. State, 43 Miss. 2; Osborne v. State, 99 Miss. 410; Eaton v. State, 140 So. 729.
The only other error assigned is with reference to the sentence imposed in this case. The sentence in this case was apparently under section 785 of the Code of 1930, which provided imprisonment for not less than seven years nor more than ten years. Chapter 272 of the Laws of 1932 apparently changes the sentence to be imposed in a case of this kind to not less than one year, nor more than five years, under section 5 thereof. This chapter 272, was approved by the Governor on May 16, 1932, while this conviction was had on the 23rd day of June, 1932.
Section 1361 of the Mississippi Code of 1930, provides that no statutory change of any law affecting a crime or its punishment shall effect or defeat the prosecution of any crime committed prior to its enactment, whether such prosecution be instituted before or after such enactment, unless it is otherwise specially provided in such statute. Chapter 272 of the Laws of 1932 does not specifically refer to any prosecutions, begun under the old law, so that, in my judgment, it was proper for the court to sentence appellant under section 785 of the Code of 1930.
Appellant was indicted jointly with Robert A. Murrah and Will Lawrence in the circuit court of Harrison county of...
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