Howard v. State

• Decision Date: 27 October 1899
• Citation: 34 S.E. 330,109 Ga. 137
• Parties: HOWARD v. STATE.
• Court: Georgia Supreme Court

34 S.E. 330

109 Ga. 137

HOWARD v. STATE.

Supreme Court of Georgia

October 27, 1899

Syllabus by the Court.

1. One may be an accessory before the fact to the offense of willfully and maliciously setting fire to and attempting to burn a house which may be the subject-matter of the crime of arson.

2. Such a house is sufficiently described in an indictment averring that it was "a certain guard and jail house" in a named village, and was the property of that village.

3. On the trial of one charged with being an accessory before the fact to the commission of a particular crime, evidence tending to show that the accused had a motive for desiring this crime to be committed, and that he had actually endeavored to induce one other than the person named in the indictment as principal to commit it, was admissible for the state.

4. On such a trial, the free and voluntary declarations or admissions of the alleged principal are admissible to show his guilt; but neither declarations nor admissions of an alleged principal, which merely tend to incriminate the alleged accessory, are admissible against the latter, if made after the completion of the criminal enterprise.

5. A charge which gave to evidence of the character last indicated in the preceding note the same effect as the sworn testimony of an accomplice was erroneous.

Error from superior court, Pierce county; Joseph W. Bennet, Judge.

J. R Howard was convicted of being an accessory before the fact to an attempt to commit arson, and from the judgment of conviction and a judgment denying him a new trial he brings error. Reversed.

W. A Milton, A. E. Cochran, and J. L. Sweat, for plaintiff in error.

John W Bennet, Sol. Gen., J. M. Terrell, Atty. Gen., and Estes & Walker, for the State.

LUMPKIN P.J.

The grand jury of Pierce county returned a bill of indictment against John Ford and J. R. Howard containing two counts. In the first both were charged with "the offense of an attempt to commit arson, for that the said John Ford and J. R. Howard *** unlawfully, willfully, and maliciously did set fire to and attempt to burn a certain guard and jail house in the city, town, and village of Patterson, in said county, the same being then and there the property of the said city, town, and village." The second count charged Howard "with having committed the offense of being accessory before the fact to the offense of an attempt to commit arson, for that the said John Ford *** did unlawfully, willfully, and maliciously set fire to and attempt to burn" the house in question; and Howard, "being absent at the time the said crime of an attempt to commit arson was committed as aforesaid, did then and there unlawfully, maliciously, and willfully procure, counsel, and command the said John Ford to commit said crime as aforesaid." Howard was put on trial, and before pleading to the merits demurred to the indictment as follows: "(1) Because said defendant is not charged in said indictment, in either of the counts thereof, with any crime under the laws of Georgia. (2) Because there is no such offense, under the laws of Georgia, of an attempt to commit arson, as charged in the first count of said indictment. (3) Because there is no such an offense, under the laws of Georgia, of accessory before the fact to the offense of an attempt to commit arson, as charged in the second count of said indictment. (4) Because the house described in the first and second counts of said indictment upon which it is alleged the offense of an attempt to commit arson was perpetrated is described as a certain guard and jail house in the city, town, and village of Patterson, the same being then and there the property of the said city, town, and village of Patterson; said description being too general and indefinite, and such as is unauthorized, and not warranted by law." The demurrer was overruled, and Howard was convicted. He excepted to the refusal of the court to sustain his demurrer, and also to a judgment denying him a new trial.

1. Section 136 of the Penal Code defines arson as "the malicious and willful burning of the house or outhouse of another." The next section declares that: "The willful and malicious burning, or setting fire to, or attempting to burn, a house in a city, town, or village whether the house be the property of the perpetrator or of another, shall be punished" as a capital offense. It will thus be seen that the act of "setting fire to" or the act of...