Commonwealth v. Harrison

• Decision Date: 13 November 1931
• Parties: COMMONWEALTH v. HARRISON.
• Court: Kentucky Court of Appeals

43 S.W.2d 354

241 Ky. 88

COMMONWEALTH v. HARRISON.

Court of Appeals of Kentucky

November 13, 1931

Appeal from Circuit Court, Muhlenburg County.

Ollie Harrison was indicted for crime of willfully and maliciously setting fire to and burning a storehouse. The court peremptorily instructed the jury to find the defendant not guilty, and the commonwealth appeals, asking that the law be certified.

Law certified in accordance with opinion.

J. W Cammack, Atty. Gen., Jas. M. Gilbert, Asst. Atty. Gen., E. J Felts, of Russellville, and W. O. Smith, of Central City, for appellant.

C. A Denny, of Greenville, for appellee.

HOBSON C.

Ollie Harrison and Whit Harrison were indicted in the Muhlenburg circuit court for the crime of willfully and maliciously setting fire to and burning the storehouse of the McDonald Coal Mining Company. Ollie Harrison was placed on trial, and at the conclusion of the commonwealth's evidence, on his motion, the court peremptorily instructed the jury to find the defendant not guilty. The commonwealth appeals, asking that the law be certified. The proof on the trial, briefly stated, is this:

Early on the morning of April 6, 1930, the building was seen on fire. When the manager of the store reached the building, the roof was about to fall in. An investigation was made to ascertain the responsibility for the fire, and in this search they found about $72 worth of goods which had been in the store and were taken from it and hidden in a thicket about 100 yards beyond Ollie Harrison's house. He was arrested and, when arrested, confessed that he had gone in the store; had taken these goods out and put them in the thicket, and had assisted in taking other goods out of the store and then set fire to it, late in the night. Section 240 of the Criminal Code of Practice provides: "A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed."

The case turns on the question whether there was other proof here that the offense was committed. The rule under section 240 is not the same as under section 241, which relates to the testimony of an accomplice and provides that a conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense. Under section 240 it is only required that a confession must be accompanied with other proof that such an offense was committed. It was clearly proved here that the storehouse was burned; that it caught fire late in the night, and, when the fire was discovered, the roof was falling in. There was nothing in the facts to warrant the conclusion that the fire occurred from natural causes. In addition to this, part of the goods that were in the store were found hid in the thicket. It is very common for thieves to set fire to a building after robbing it to hide the theft. The goods were found; the defendant admitted that he had put them there. The fact that the house was robbed and that it then burned, and that the stolen goods were hidden in a thicket, was sufficient prima facie to show that the offense of burning the building had been committed. The evidence also shows that the defendant left the state the next morning and went to Illinois. In 16 C.J. p. 736, the rule is thus stated: "The independent evidence of the corpus delicti need not of itself be full and conclusive or sufficient beyond a reasonable doubt, as the confession may be considered with the facts and circumstances in evidence in determining whether the corpus delicti is established." To the same effect see 1 R. C. L. p. 588, § 131.

In State v. Rogoway, 45 Or. 601, 78 P. 987, 989, 81 P. 234 2 Ann. Cas. 431, where the defendant was convicted of arson, the court, after reviewing the...