Duke v. State
| Decision Date | 17 June 1938 |
| Citation | 185 So. 422,134 Fla. 456 |
| Parties | DUKE v. STATE. |
| Court | Florida Supreme Court |
Rehearing Denied July 8, 1938.
On Rehearing Nov. 9, 1938.
Error to Circuit Court, Lee County; George W. Whitehurst, Judge.
Harold Duke was convicted of burning a dwelling house, and he brings error.
Affirmed.
On Rehearing.
W. D. Bell, of Arcadia, for plaintiff in error.
Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen for the State.
In this cause Mr. Chief Justice ELLIS, Mr. Justice BUFORD and Mr. Justice CHAPMAN are of the opinion that the judgment of the Circuit Court herein should be affirmed, while Mr. Justice WHITFIELD, Mr. Justice TERRELL and Mr. Justice BROWN are of the opinion that the said judgment should be reversed for a new trial. When the members of the Supreme Court, sitting six members in a body and after full consultation, are permanently and equally divided in opinion as to whether the judgment should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the Court, the judgment should be affirmed, therefore it is considered, ordered and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the judgment of the Circuit Court in this cause be and the same is hereby affirmed.
Affirmed.
On Merits.
The information herein contained three counts charging that the defendant (1) 'did unlawfully, wilfully and maliciously set fire to and burn a certain dwelling house * * * the property of Paul Duke'; (2) 'did unlawfully maliciously and wilfully set fire to and burn that certain dwelling house * * * the property of Cleo Duke'; (3) 'did unlawfully, wilfully and maliciously set fire to and burn that certain dwelling house * * * the property of Harold Duke'. There is no allegation in any count as to the occupancy of the dwelling house alleged to have been burned.
A motion was made to quash the information upon grounds going to the validity of the statute defining the offense, as well as to the sufficiency of the information as a pleading.
Chapter 15603, Acts of 1931, Ex.Sess., is as follows:
See Secs. 7208(8), (9), (10), (11), Perm.Supp.1936 to C.G.L.
This Act was held valid in Love v. State, 107 Fla. 376, 144 So. 843. The prior statute relating to arson was held to be invalid because it violated section 16, Article 3, or the State constitution, in that it contained regulations of two distinct and incongruous subjects. See Chapter 11812, Acts of 1927; Williams v. State, 100 Fla. 1054, 132 So. 186; Sawyer v. State, 100 Fla. 1603, 132 So. 188.
It is in effect argued here that Chapter 15603 violates section 16, article 3, of the constitution in that the title of the Act expresses the subject of the Act to be 'to Denominate as 'Arson' the Crime Hereby Denounced, and to Divide the Same Into Degrees, and to Provide the Punishment for Each Degree', when 'the statute does not denominate any particular crime as arson but each section deals with a different kind of burning, and instead of denouncing any one crime as arson, it has set forth four crimes and denounced each as arson'; that the crimes included in the statute are not degrees of any one offense, but four separate and distinct statutory crimes; that 'the statute purports to denounce a single crime and proceeds to denounce four separate and distinct crimes'. Such contentions are untenable.
It is within the power and judgment of the legislature by statute to define arson and to make it applicable to dwelling houses or other property, or to define different degrees of arson with reference to different kinds of property; and it is not necessary for any of such definitions to conform to common law definitions of arson or to definitions of arson contained in standard authorities on definitions, where the statute definitely and sufficiently gives the elements of the crime defined, and no provision of organic law is thereby violated. The statute is quoted above and its title does not express more than one subject of legislative regulation; and the subject expressed in the title is not misleading as to the matter contained in the body of the statute.
The subject of the enactment is the definition and punishment of crimes denominated arson, whether the same would be arson at common law or otherwise; all are kindred offenses and all are denominated arson, each a stated degree of arson with appropriate punishment for each degree, all definitely defined.
All the provisions contained in the body of the Act directly relate to the subject expressed in the title or to matters properly connected therewith. Section 16, Article 3, of the constitution is not violated by the enactment of Chapter 15603, Acts of 1931, Ex. Sess.
It is urged that the statute endeavors to not only change the definitions of common law arson, but it changes the definition of a dwelling house without giving any notice of such change in its title. Under the title of the Act, the property made the subject of arson by the Act may be defined by the statute even if it does include dwelling houses, whether occupied, unoccupied or vacant, and also other property.
The constitution requires the title of an Act to express the subject of the Act, not the mode or manner in which the subject is treated or regulated by the Act; and unless the title is misleading as to, or is too restricted to cover, the subject of the Act or matters contained in the Act, the constitution may not be violated.
While at common law the usual definition of the crime of arson is 'the wilfull and malicious burning of a dwelling house, or outhouse within the curtilage of a dwelling house of another', yet the legislature by statute may change the definition of arson so that the crime may be extended to the burning of other houses, or property other than dwelling houses or other houses within the curtilage, whether the houses be unoccupied or not as an element of the statutory offense. See Williams v. State, 100 Fla. 1054, 132 So. 186; 6 Corpus Juris Secundum, Arson, 718, 733. §§ 1-13; 4 American Jurisprudence 87, 103.
The words 'dwelling house' may mean 'a place of habitation and abode'; and in a prosecution under the common law definition of the crime of arson, it may be proper or necessary to allege that the dwelling house was occupied by a designated person. But as the statute has defined arson to be in stated cases whether the 'dwelling house' unlawfully burned be 'occupied, unoccupied or vacant', it is not essential that the information allege the name of the occupant of the dwelling house in this case. Under the statute the crime relates to a dwelling house without reference to its occupancy, the offense and the punishment being the same whether the dwelling house is occupied, unoccupied or vacant; but the punishment is greater than that for a criminal...
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