Jones v. Commonwealth

• Decision Date: 15 May 1931
• Citation: 239 Ky. 110,38 S.W.2d 971
• Parties: JONES v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

38 S.W.2d 971

239 Ky. 110

JONES v. COMMONWEALTH.

Court of Appeals of Kentucky

May 15, 1931

Appeal from Circuit Court, Carter County.

Ollie Jones was convicted of arson, and he appeals.

Reversed with instructions.

R. C Littleton, of Grayson, for appellant.

J. W Cammack, Atty. Gen., and A. M. Samuels, of Frankfort, for the Commonwealth.

DIETZMAN J.

Appellant was convicted of the crime of arson, as defined by section 1167 of the Kentucky Statutes, and sentenced to serve two years in the penitentiary. He appeals.

The indictment charges him with the offense of arson committed by the burning by him of "the dwelling house of Iona Jones Watkins, which dwelling house was unoccupied at the time as a residence."

The facts are these: Mrs. Watkins has for a number of years been the owner of a farm upon which there was and is a dwelling surrounded by the usual outbuildings of a farm. For the sake of clearness, we shall call this dwelling the mansion house. From 250 to 300 yards away from the mansion house, there was located another building. When first erected, this building too was a dwelling and was used as a tenant house, but it fell into disuse and decay. For at least the past three or four years, this house has not been occupied as a dwelling. Its doors had been removed, the windows and window sash taken away, the floor torn out, and the roof was in a nondescript condition. The witnesses refer to the building as a "log pen." It has been used during the last couple of years as a place for the storage of fodder. Appellant admits that he burned this building, but claims that he did it accidentally. The proof of the commonwealth tended to show a case of willful and malicious burning.

Appellant insists that he was entitled to a peremptory instruction because the proof showed without dispute that the building burned was not a dwelling, and, though a quasi barn or an outhouse, it was not "parcel" of the mansion house, which, being true, he was not guilty of the crime of arson with which he was charged.

Sections 1167 and 1168 of the Statutes read:

"1167. Any person who wilfully and maliciously sets fire to or burns or caused to be burned or who aids, counsels or procures the burning of any dwelling house, or any kitchen, shop, barn, stable or other out-house that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another, shall be guilty of arson, and upon conviction thereof, be sentenced to the penitentiary for not less than two nor more than twenty years.

1168. Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any barn, stable, garage, or other building, whether the property of himself or of another, not a parcel of a dwelling house; or any shop, storehouse, warehouse, factory, mill or other building, whether the property of himself or of another; or any church, meeting house, court house, work house, school, jail or other public building or any public bridge, shall, upon conviction thereof, be sentenced to the penitentiary for not less than one nor more than ten years."

It will be noted that the crime of arson, as defined by section 1167, is practically, if not identically, the same crime as defined by the common law. It will further be noted that section 1168, among other things, makes the burning of any barn, stable, garage, or other building not a parcel of the dwelling house an offense with a punishment therefor less than that prescribed by section 1167 for the burning of those buildings when they are "parcel" of the dwelling house.

Section 263, subsection 4, of the Criminal Code of Practice reads:

"The offenses named in each of the subdivisions of this section shall be deemed degrees of the same offense, in the meaning of the last section: ***

(4) Arson and house burning."

It therefore follows that the offense of burning a barn, stable, garage, or other building not a parcel of the dwelling house denounced by section 1168 of the Statutes is a degree of the offense of burning such buildings, "parcel of the dwelling house" denounced by section 1167 of the Statutes.

We are clearly of the opinion that the building burned by appellant was neither a dwelling, nor was it a parcel of the mansion house. In 5 C.J. 546, it is written: "A dwelling house loses its character as such when it ceases to be dwelt in or is closed up as an empty house or where it is converted into a place for other purposes than human occupancy."

The building in question, although originally built as a dwelling, had long ceased to be habitable. It was, as the witnesses described it, little more than a log pen. It had for a number of years not been used as a dwelling, and indeed had been converted into a crib for fodder. At the best, it was only a farm outbuilding. Nor was it "parcel" of the dwelling house. This expression "parcel of" is, as the authorities hold, of the same meaning as that of "the curtilage." Thus, in 5 C.J. 549, we find: "At common law a dwelling house includes not only the dwelling but also all outhouses which are parcel thereof, that is to say, used in connection therewith and situated within the curtilage."

It is not always easy to say just what the curtilage comprises. In 5 C.J. 547, the author says: "The curtilage is a court yard or the space of ground adjoining the dwelling house necessary and convenient and habitually used for family purposes and the carrying on of domestic employments."

In Commonwealth v. Elliston, 20 S.W. 214, 215, 14 Ky. Law Rep. 216, the question before us was as to the sufficiency of an indictment for arson. We said: "By the common law an indictment for arson did not have to aver that the house burned was a dwelling but only that a house had been burned. The term 'house' imported a dwelling house, and the offense was committed if either the dwelling, or an out-building within the curtilage and so near the dwelling as to endanger it, were burned. The offense is one against the security of the habitation, rather than the property." To the same effect is Roberson's New Kentucky Criminal Law and Procedure (Second Edition) p. 904.

It will be noted from this excerpt from the Elliston Case that it was unnecessary to aver in the indictment for arson at common law that the house burned was a dwelling, the word "house" importing a dwelling, and that the offense was established...