Dean v. State

• Decision Date: 13 February 1940
• Docket Number: 4 Div. 489.
• Citation: 29 Ala.App. 401,197 So. 51
• Parties: DEAN v. STATE.
• Court: Alabama Court of Appeals

197 So. 51

29 Ala.App. 401

DEAN v. STATE.

4 Div. 489.

Court of Appeals of Alabama

February 13, 1940

Rehearing Denied March 12, 1940.

Affirmed on Mandate June 18, 1940.

Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.

Arlin Dean was convicted of arson in the third degree, and he appeals.

Reversed and remanded.

Certiorari granted by Supreme Court in Dean v. State, 4 Div. 145, 197 So. 53.

Mulkey & Mulkey, of Geneva, for appellant.

Thos S. Lawson, Atty. Gen., and Francis M. Kohn, Asst. Atty. Gen for the State.

PER CURIAM.

The indictment was in three counts. To the first count the defendant interposed demurrer, which, being confessed by the State, was sustained; thereby eliminating the first count of the indictment, making it unnecessary for us to pass upon any question solely on the first count.

The second and third counts were as follows:

"Count 2. The grand jury of said county further charge that before the finding of this indictment that Arlin Dean and Clarence Deal, willfully or with intent to charge, injure or defraud the insurer set fire to the following described personal property: one 1937 Ford Sedan Automobile, the property of the said Arlin Dean, which property was at the time insured against loss or damage by fire.

"Count 3. The grand jury of said county further charge that before the finding of this indictment that Arlin Dean and Clarence Deal willfully set fire to, or burned or caused to be burned, or aided or procured the burning, an automobile, to-wit: one 1937 Ford Sedan Automobile, of the value of twenty-five dollars or more, the property of Arlin Dean; or with intent to defraud, set fire to or burned, or caused to be burned, or aided or procured the burning of an automobile, to-wit: one 1937 Ford Sedan Automobile, the property of the said Arlin Dean, against the peace and dignity of the State of Alabama."

To these two counts defendant interposed demurrer, taking the point that there is no allegation in the counts that the offense charged was committed subsequent to November 9, 1927, and it does not appear that the offense charged was committed at a time when the same constituted arson in the third degree.

Prior to the passage and approval of Section 3293 of the Code of 1923, and now appearing in Michie's Code as Section 3293, we had no Statute in this State covering the facts as set forth in counts two and three upon which this trial was had. It is only by virtue of the 1927 law, p. 554, supra, that such facts as are alleged when committed constitute arson in the third degree. Under the old section of the code, before amendment, there was no prohibition against a man burning his own property in order to defraud the insurer. Under the arson Statute, as it now exists, arson in the third degree is defined to be: "Any person who willfully sets fire to, or burns or causes to be burned, or who aids or procures the burning of any barracks, crib, rick, or stack of hay, or any cotton pen containing cotton, or corn crib, or corn pen containing corn, wheat, oats, barley or other grains, or vegetable products of any kind, or any automobile, motor truck, or other motor vehicle, or any other personal property not specifically named herein, such property being of the value of twenty-five dollars or more, the property of another; or any person who, with intent to defraud, sets fire to or burns or causes to be burned, or who aids or procures the burning of any of the property named in this section, the property of himself, shall be guilty of arson in the third degree, and must, upon conviction thereof, be punished by imprisonment in the penitentiary for not less than one nor more than five years. The following form of indictment (caption, commencement and conclusion to be supplied as provided by section 4558 of the Code) shall be sufficient under this section: A. B. willfully set fire to, or burned or caused to be burned, or aided or procured the burning (as the case may be) a crib, (or other building describing it), of the value of twenty-five dollars or more, the property of C. D.; or with intent to defraud set fire to or burned, or caused to be burned, or aided or procured the burning of a crib (or other property named in this section) the property of himself. (Form 10 (10) ). (1927, p. 554.)"

Under our Statute there is no limitation upon prosecution for arson. Prosecution for arson may be prosecuted without time limit. Code of 1923, Section 4928.

We therefore have an indictment charging an act which prior to September 9, 1927, was not a violation of any law, and an act which after September 9, 1927, became arson in the third degree. It appears therefore that the defendant is charged with a new offense and covers a period both when the thing charged was and was not a violation of the law, and was defective upon appropriate demurrer for a failure to aver the time of the commission of the offense. This rule is recognized and approved by our Supreme Court in an opinion by Anderson, Chief...