Heard v. State

• Decision Date: 28 February 1887
• Citation: Heard v. State, 81 Ala. 55, 1 So. 640 (Ala. 1887)
• Parties: HEARD v. STATE.
• Court: Alabama Supreme Court

1 So. 640

81 Ala. 55

HEARD v. STATE.

Supreme Court of Alabama

February 28, 1887

Appeal from circuit court, Perry county.

Indictment for arson in the second degree.

The material facts are stated in the opinion. On the trial, the court, among other things, charged the jury "that, if they believed from the evidence beyond a reasonable doubt that in this county, (Perry,) in August, 1886, the defendant willfully set fire to and burned the gin-house, and that it was the property of A. M. Walker, and was of the value of five hundred dollars or more, then defendant was guilty as charged in the indictment, even if they should believe he did it at the instance and request of Walker, to enable Walker to get the amount for which it was insured." The appellant excepted to the giving of his charge.

J W. Bush, for appellant.

T N. McClellan, Atty. Gen., for the State.

CLOPTON J.

The defendant was tried and convicted under an indictment found under section 4347 of the Code, which contained two counts each of which charged him with burning a gin-house, the property of A. W. Walker. On his examination as a witness the defendant admitted the burning, but stated that he did it at the instance and by employment of the owner, Walker, who said the building was insured, and that the insurance company had treated him badly, and he wanted to get even. This was denied by Walker, but the denial does not affect the legal question involved, as by the charge of the court an inquiry into the truth of the statement was rendered immaterial. The circuit court ruled that the defendant is guilty as charged in the indictment if he willfully set fire to or burned the gin-house, and it was the property of Walker, though he did it at the instance and request of the owner, to enable him to get the amount for which it was insured. The instruction raises the question whether a person who burns a building insured against fire, by request of the owner, to enable him to obtain the insurance money, is guilty of arson, as charged in the indictment.

The statutes, while adding structures other than those included at common law, and dividing arson into three degrees distinguished by the character of the buildings or structures and the attendant circumstances, were not designed to create new offenses. The essential common-law ingredients of the offense still exist. At common law, and under the statutes, arson is regarded as a public wrong, growing out of an injury to the possession rather than the property. Adams v. State, 62 Ala. 177. A man may burn a house owned and occupied by him, or he may procure another to burn it, and neither be guilty of arson, unless the fire is communicated to and burns an adjacent building, the property of some other person, though it would be a misdemeanor if the structure were contiguous to others whereby their safety was endangered. East, P. C. 1027; 1 Whart. Crim. Law. 830; Sullivan v. State, 5 Stew. & P. 175. Arson consists in the malicious and voluntary burning of the house of another. Malice is a requisite constituent under the statutes, as at common law; and an act done by one's self to his own property, no injury resulting to another, cannot be the predicate of legal malice. Neither can the defendant be said to...