Garrett v. State

• Decision Date: 18 February 1887
• Citation: 109 Ind. 527,10 N.E. 570
• Parties: Garrett v. State.
• Court: Indiana Supreme Court

109 Ind. 527

10 N.E. 570

Garrett

v.State.

Supreme Court of Indiana.

February 18, 1887.

Appeal from circuit court, Henry county.Brown & Warner, for appellant. The Attorney General, for the State.

HOWK, J.

The indictment in this case charged “that William Garrett, on the twenty-fifth day of June, 1886, at Henry county, in the state of Indiana, did then and there, unlawfully, feloniously, willfully, and maliciously, set fire to and burn a certain dwelling-house, then and there situate, of the value of one thousand dollars, then and there being the property of another person, to-wit, Hannah Garrett; and did then and there and thereby, unlawfully, feloniously, willfully, and maliciously, burn and destroy said property, to the damage thereof in the sum of one thousand dollars, contrary to the form of the statute,” etc.

Upon his arraignment appellant filed his written plea or answer herein, in two paragraphs, in substance as follows: (1) That he was not guilty as charged in the indictment; and, (2) for a further and special answer, he averred that at the time of the commission of the alleged offense charged in the indictment he was of unsound mind. To this second paragraph the state replied by a general denial. The issues joined were tried by a jury, and a verdict was returned finding appellant guilty as charged in the indictment, and assessing his punishment at confinement in the state's prison for the term of five years, and a fine in the sum of one dollar. Over his motion for a new trial, the court rendered judgment against him on the verdict.

Errors are assigned here by the appellant which call in question (1) the overruling of his motion to quash the indictment; (2) the overruling of his motion for a new trial; and (3) the sufficiency of the facts stated in the indictment to constitute a public offense.

Only one objection to the indictment, or to the sufficiency of the facts stated therein to constitute a public offense, has been pointed out by appellant's counsel in their brief of this cause, and that is that the indictment ought to have shown, by proper averment, who was the actual occupant of the dwelling-house burned. The crime for which appellant was indicted, and of which he was convicted, is defined, and its punishment prescribed, in section 1927, Rev. St. 1881. So far as applicable to the case in hand, this section provides as follows: “Whoever willfully or 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, * * * is guilty of arson, and, upon conviction thereof, shall be imprisoned in the state prison not more than twenty-one years, nor less than one year, and fined not exceeding double the value of the property destroyed.”

It is manifest, from this statutory definition of the offense charged against the appellant, that the question of the occupancy of the dwelling-house burned and destroyed was an immaterial question, and that it was therefore wholly unnecessary to charge in the indictment who was the occupant of such dwelling-house. It was necessary, however, under the statute, that the indictment should show, as it did, that the dwelling-house burned was the property of another person than the defendant, and should give, as it did, the name of such other person. Ritchey v. State, 7 Blackf. 168;Wolf v. State, 53 Ind. 30. In the case under consideration, it was averred in the indictment, as we have seen, that the dwelling-house burned by appellant, as charged, was “the property of another person, to-wit, Hannah Garrett.” On the trial of this cause it was shown by the evidence that Hannah Garrett, the person named in the indictment as the owner of the dwelling-house burned, was the wife of the appellant, William H. Garrett, and that he and his wife, Hannah, occupied, used, and dwelt in such house as their habitation and dwelling-house. Upon this evidence, and the facts shown thereby, appellant's counsel have predicated what they denominate as “the main question in this case,” namely: Under our statute, the substance of which we have heretofore quoted, was the appellant guilty of arson in setting fire to and burning, as he did, the dwelling-house as charged in the indictment? At common law, arson is an offense against the possession, and under that law appellant could not be guilty of arson in setting fire to and burning the dwelling-house while he was in the lawful possession thereof, without reference or regard to the ownership of such property. McNeal v. Woods, 3 Blackf. 485;State v. Wolfenberger, 20 Ind. 242; 3 Greenl. Ev. §§ 53, 54, and notes.

In Snyder v. People, 26 Mich. 106, a case similar in many respects to the case we are now considering, it was held by the supreme court of Michigan that arson is an offense...