Dowty v. State

• Decision Date: 16 February 1932
• Docket Number: 24,957
• Citation: 179 N.E. 720,203 Ind. 228
• Parties: Dowty v. State of Indiana
• Court: Indiana Supreme Court

179 N.E. 720

203 Ind. 228

Dowty v. State of Indiana

No. 24,957

Supreme Court of Indiana

February 16, 1932

1. CRIMINAL LAW---Motion to Suppress Evidence---Method of Review of Ruling---Not Proper Assignment of Error on Appeal---Should be Assigned as Cause for New Trial.---The overruling of a motion to suppress evidence is not a proper assignment of error on appeal, but should be assigned as a cause for a new trial under cl. 1, 2325 Burns 1926. p. 229.

2. CRIMINAL LAW---Motion to Suppress Evidence---Review on Appeal---Absence of Evidence---Presumed Ruling was Correct.---A motion to suppress evidence tenders an issue of fact, and, in the absence of the evidence heard by the court in ruling thereon, the Supreme Court must presume that the trial court ruled correctly. p. 230.

3. ARSON---Word "Property" Defined---Applies to All Valuable Rights and Interests in Real Estate.---As applied to the statute defining arson (2441 Burns 1926), the word "property" therein embraces every species of valuable right and interest in real property, such as easements, franchises and incorporeal hereditaments, whether the right thereto be absolute or qualified. p. 231.

4. ARSON---Ownership of Property Burned---Tenant Cannot Question his Lessor's Title.---A tenant prosecuted for arson in burning the leased property cannot question his lessor's title to the property, although the legal title to the property is in another. p. 232.

5. ARSON---Ownership of Property Burned---Leasehold Estate Sufficient.---A leasehold estate in a part of the building was "property" and sufficient to sustain the allegation in the indictment that it was the property of another. p. 232.

6. CRIMINAL LAW---Appeal---Supreme Court will not Weigh the Evidence.---On appeal from a conviction for a criminal offense, the Supreme Court will not weigh the evidence to determine the positiveness with which the facts were proved p. 235.

7. CRIMINAL LAW---Circumstantial Evidence---Review on Appeal.---When the sufficiency of circumstantial evidence to sustain conviction is in question, the Supreme Court examines such evidence for the purpose of deciding whether an inference may reasonably be drawn therefrom tending to support the finding of the trial court. p. 235.

8. ARSON---Evidence Insufficient to Sustain Conviction.---Evidence held insufficient to show conclusively that the defendant set fire to the building that was burned p. 235.

From Allen Circuit Court; Sol A. Wood, Judge.

William Dowty was convicted of arson, and he appealed.

Reversed.

Eichhorn Gordon & Edris, for appellant.

Arthur L. Gilliom, Attorney-General, and Edward J. Lennon, Jr., Deputy Attorney-General, for the State.

OPINION

Myers, J.

Appellant, in the Allen Circuit Court, upon an indictment in three counts, was tried and convicted of arson. § 2441 Burns 1926. On appeal to this court, the only rulings of the lower court properly assigned as independent errors are the overruling of appellant's motion to quash each count of the indictment and the overruling of his motion for a new trial. The overruling of his motion to suppress evidence and his motion requesting the court to designate upon which count or counts of the indictment he was found guilty are not questions for independent assignments of error, but should be assigned as causes for a new trial. § 2325 Burns 1926, cl. 1; Chappelle v. State (1925), 196 Ind. 640, 149 N.E. 163.

Counsel for appellant, in their oral argument, stated that they were "not contending there was any error in overruling the motion to quash the first count." At the same time, the Attorney-General orally conceded that a conviction on counts 2 and 3 could not be sustained. Consequently, our attention will be limited to the questions in support of the motion for a new trial as applied to the charge in the first count. It, in substance, stated that William Dowty, on a stated date, in Allen County, Indiana, "did then and there feloniously, wilfully and maliciously, set fire to and burn a certain store building then and there situate, of the value of $ 2,000.00, then and there the property of other persons, to wit, the property of George Ertel and Fay Ertel," to the damage thereof in the sum of $ 500.

That part of the statute at present material provides that "Whoever wilfully and maliciously burns . . . any dwelling house or other building . . . whether the building be used or intended for a dwelling house or for any other purpose . . . the property so burned . . . being of the value of twenty dollars or upwards, and being the property of another, . . . is guilty of arson." § 2441, supra.

The motion to suppress evidence tendered an issue of fact. The court heard evidence upon that issue and overruled the motion. The evidence upon which the court acted in this matter is not before us. There being no showing to the contrary, we must presume that the court ruled correctly. Straw v. State (1925), 197 Ind. 606, 149 N.E. 430, 151 N.E. 695; Coleman v. State (1925), 196 Ind. 649, 149 N.E. 162; Gielow v. State (1926), 198 Ind. 248, 153 N.E. 409.

The merits of this case were tried by the court. After the court had announced its findings, but before judgment, appellant requested the court to designate the count or counts of the indictment upon which he was found guilty. The court denied this request and thereafter rendered judgment on the general finding of guilty. An examination of the record discloses that the ruling on the foregoing request was not made a cause for a new trial. The suggested question on that ruling is not before us for decision.

Appellant next insists that there was a failure to prove ownership of the property burned as charged in the indictment, and hence a fatal variance. The allegation in the indictment to which appellant refers was: "to wit, the property of George Ertel and Fay Ertel." From the evidence we learn that George Ertel and Fay Ertel mentioned in the indictment were husband and wife and, at the time of the fire, they were occupying a part of the building. At that time George Ertel, Sr., was the fee owner of the lot and building burned, but was not then and had not been in possession of the same since the year 1921, when he rented the building to George and Fay Ertel, his son and daughter-in-law, for $ 45 per month. These lessees sublet a part of the building to appellant for a monthly rental of $ 80, and another part to George Roy for $ 25 a month. Again looking to the statute, and to that part at this time pertinent -- "the property so burned or attempted to be burned being of the value of twenty dollars or upwards, and being the property of another" -- it will be noticed that the word "property" seems to have been advisedly used, it being a word of broad application. It embraces every species of valuable right and interest in real and personal property, easements, franchises and incorporeal hereditaments. § 900 Burns 1926; Figg v. Snook (1857), 9 Ind. 202; Aurora Nat. Bank v. Black (1891), 129 Ind. 595, 29 N.E. 396; Adams v. Merrill (1908), 45 Ind.App. 315, 85 N.E. 114, 87 N.E. 36; Metropolitan, etc., R. Co. v. Chicago, etc., R. Co. (1877), 87 Ill. 317, 324. It extends to the right of a person over a thing, although such right may be indefinite in point of time or user. As applied to the statute defining the crime of arson, the word property serves to cover the things in the statute particularized, whether the right thereto be absolute or qualified.

The statute defines arson as an offense against the property as well as the possession. Garrett v. State (1887), 109 Ind. 527, 10 N.E. 570; Kruger v. State (1893), 135 Ind. 573, 35 N.E. 1019. Unquestionably, at the time of the fire, the Ertels named in the indictment had a property interest, sometimes referred to as a "leasehold estate," in the fire-damaged building. That part of the building in the possession of appellant at the time of the fire was that of a tenant by lease from George and Fay Ertel, and, applying the law of landlord and tenant, he will not be heard to question his lessor's title or authority to sublet. Reese v. Caffee (1892), 133 Ind. 14, 32 N.E. 720; Riverside Coal Co. v. No. Indianapolis, etc., Works (1923), 194 Ind. 176, 184, 139 N.E. 674, 142 N.E. 377. As we see this case, the evidence shows that the Ertels named in the indictment had an interest in the building partly burned which must be regarded as property, and sufficient to sustain the allegation in the indictment and to meet the statutory phrase, "the property of another."

The evidence is challenged as being insufficient to sustain the court's finding. This question has given us some concern. We not only have read carefully the recitals of the evidence in the briefs of counsel for appellant and appellee, but we have read the evidence in the record as well. We will not take the space to include in this opinion any more of it than is absolutely necessary to give the reader a fair knowledge of the State's case. The frame building alleged to have been set on fire was located at the northeast corner of Gay and Creighton Streets in the city of Fort Wayne. The east portion thereof was two-story, and the part occupied by appellant as a grocery and meat market...