Emig v. Daum
| Decision Date | 16 April 1891 |
| Docket Number | 6 |
| Citation | 27 N.E. 322,1 Ind.App. 146 |
| Parties | EMIG v. DAUM |
| Court | Indiana Appellate Court |
From the Brown Circuit Court.
Judgment reversed, with instructions to proceed in accordance with this opinion.
F. T Hord and M. D. Emig, for appellant.
G. W Cooper and C. B. Cooper, for appellee.
This was an action for slander, commenced in the Bartholomew Circuit Court, from which the venue was changed to the court below, in which the appellee recovered judgment for five hundred dollars.
The complaint consisted of ten paragraphs. A demurrer was sustained as to the last five paragraphs, and was overruled as to the first five paragraphs. The overruling of the demurrer is assigned as error.
In Casey v. Hulgan, 118 Ind. 590, 21 N.E. 322 it was held that where, in an action for slander, there is no evidence tending to prove a set of words alleged in a paragraph of the complaint, the defendant can not be injured by the overruling of a demurrer addressed to such set of words, and that no available error can be assigned on such ruling. See, also, Lipprant v. Lipprant, 52 Ind. 273. In the case at bar there was no evidence tending to support the second, third, or fourth paragraphs of the complaint, and the court, in its instructions, directed the attention of the jury to the paragraphs severally, and told them, as to each, that if there was no evidence of the words alleged therein, they should find for the defendant on such paragraph.
We will confine our examination, therefore, to the first and fifth paragraphs. In the first, the appellee, Mary E. Daum, alleged that on the 5th day of November, 1885, the barn of her husband, Philip L. Daum, of the value of eight hundred dollars, situate in Union township, Bartholomew county, in the neighborhood where the appellant, William Emig, resided, was destroyed by fire, and her husband at the time held a policy of fire insurance on said barn for five hundred dollars; that, the next day after said fire, the appellant, moved and instigated by malice, and intending greatly to injure the appellee in her good name and reputation, and to prevent her said husband from collecting said insurance policy, did, at the town of Edinburgh, in the county of Johnson, in this State, in the presence and hearing of divers good citizens of said State, speak of and concerning the appellee the following false and slanderous words: thereby charging that the appellee was guilty of the crime of arson, to the appellee's damage, etc.
The fifth paragraph was the same as the first, except that the words complained of were alleged to have been maliciously spoken on the -- day of November, 1885, at Bartholomew county, Indiana, and the words and innuendoes were set out as follows: "It is the opinion of the people that Mary Daum (Mary E. Daum, the plaintiff, meaning) burnt the barn (the barn of said Philip L. Daum meaning), and it is mine too;" thereby intending to charge the appellee with the crime of arson.
Our statute defining arson, section 1927, R. S. 1881, provides as follows:
"Whoever wilfully and maliciously burns or attempts to burn any dwelling-house or other building, finished or unfinished, occupied or unoccupied, 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, or being insured against loss or damage by fire; and the burning or attempt to burn being with intent to prejudice or defraud the insurer,--is guilty of arson," etc.
Whatever may have been the purpose of the pleader in the portions of the complaint relating to an insurance policy, it is manifest that neither paragraph can be taken as charging words imputing the crime of burning the barn in question with intent to prejudice or defraud the insurer.
It becomes proper, then, to inquire whether a woman can be guilty of the crime of arson in the burning of her husband's barn.
Arson is defined by Blackstone as "the malicious and wilful burning the house or outhouse of another man." 4 Blackstone Com. 219. It is defined by Bishop as "the malicious burning of another's house." 1 Bishop Cr. Law, section 559. "The offence is rather against the security of the habitation than the property in it." 1 Bishop Crim. Law, section 577.
In Ritchey v. State, 7 Blackf. 168, it was said: "Arson is an offence against possession; and the indictment should aver the property burned, or set on fire, to belong to the person or persons in the actual possession in his or their own right."
In Snyder v. People, 26 Mich. 106, under the statute of Michigan providing: "Every person who shall wilfully and maliciously burn in the night-time, the dwelling-house of another," etc., shall be punished, etc., it was held that arson is an offence against the habitation, and regards the possession, rather than the property; and that a husband, living with his wife in a dwelling-house owned by her, was not guilty of arson in burning such dwelling-house.
It was held that in such case the husband had a rightful possession jointly with the wife, and that the statutes of that State for the protection of the rights of married women do not operate upon family relations, and are not inconsistent with the marital unity of husband and wife; that where they occupy her dwelling-house together, he is there by right, and the house, in legal contemplation, so far as the offence of arson is concerned, is his dwelling house. It was said that it seems that the wife, because of the legal identity, can not be guilty of the offence of arson in burning the husband's dwelling, even though at the time living apart from him, citing March's Case, Mood. C. C. 182; and that this would doubtless be so held wherever the wife's domicile is regarded in law as identical with the husband's; and that the husband, in setting fire to the house inhabited by himself and his wife, is no more guilty of arson than the wife was, at common law, for a like wrong to the dwelling-house of the husband.
In Garrett v. State, 109 Ind. 527, 10 N.E. 570, it was held that arson, as defined in our statute, is an offence against the property, as well as the possession; and the question of occupancy or non-occupancy, habitation or non-habitation of or in the property, is an immaterial question, in view of the statutory definition of the offence; and that the dwelling-house of a married woman, though occupied by her and her husband as a dwelling or residence, is the property of another person than the husband, within the contemplation of our statute, under which, therefore, a man may be guilty of arson for the burning of his wife's house so occupied.
The common law identity of the wife with her husband made his dwelling-house her dwelling-house, the domus of both. Therefore, the burning of the dwelling-house of the husband by the wife was, at common law, the burning of a...
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