Jordan v. The State
| Decision Date | 31 October 1895 |
| Docket Number | 17,709 |
| Citation | 41 N.E. 817,142 Ind. 422 |
| Parties | Jordan v. The State |
| Court | Indiana Supreme Court |
From the Knox Circuit Court.
The judgment is affirmed.
H Burns and J. S. Pritchett, for appellant.
W. A Ketcham, Attorney-General, J. T. Goodman, Prosecuting Attorney, W. A. Cullop and C. B. Kessinger, for State.
By indictment the appellant was charged with having "unlawfully, feloniously, willfully and maliciously set fire to and burned a certain flouring, grist and corn mill-house of Samuel A. Jordan, Aaron G. Jordan and Winfield S. Lane," etc. A motion to quash the indictment was overruled and, upon a trial by jury, the appellant was found guilty as charged. The only assigned errors of the trial court are in overruling the motion to quash the indictment and in overruling a motion for a new trial. It is contended that the indictment was insufficient in failing to charge the burning of a building and in failing to charge that such building was the property of another. The statute defining the crime of arson provides that "Whoever willfully and maliciously burns, or attempts to burn, any dwelling house or other building * * * being the property of another * * * is guilty of arson." "Mill-house" has no meaning not implying a building. By the ordinary use of the word "house" it is understood to mean a building, and when taken in connection with the words "flouring," "grist," "mill," etc., it is capable of but one meaning. This has been very clearly decided in a case similar to the present, see Ford v. State, 112 Ind. 373, 14 N.E. 241.
The charge that it was the "mill-house of Samuel A Jordan," etc., sufficiently charged that such mill-house was the property of those named. This exact question was decided against the views of the appellant in Wolf v. State, 53 Ind. 30.
The two objections to the indictment thus stated could not have been passed upon in any other manner in view of the statutory provisions that "The words used in an indictment * * must be construed, in their usual acceptation, in common language," (R. S. 1894, section 1805,) and that an indictment * * is sufficient if "the offense charged is stated with such a degree of certainty that the court may pronounce judgment, upon a conviction, according to the right of the case." (R. S. 1894, section 1824.)
The next question, arising upon the motion for a new trial, is the alleged error of the court in permitting Aaron G. Jordan, the husband of the appellant, to testify as a witness on behalf of the appellee that, prior to the burning of the mill, the appellant had declared to him her intention to burn the mill, and that after its destruction she had told him that she did burn it. The objections made at the trial and repeated in this court are that such communications from the wife to the husband are privileged, and that he was, therefore, an incompetent witness as to such communications.
By the civil code (R. S. 1894, sections 504, 505), all persons, except those specifically exempted, are made competent witnesses in civil actions. Of those specifically declared incompetent are "Husband and wife, as to communications made to each other." By the criminal procedure act, R. S. 1894, sections 1865-1867, it is provided that "The rules of evidence prescribed in civil cases and concerning the competency of witnesses shall govern in criminal cases, except as otherwise provided in this act." It is further provided that "The following persons shall be competent witnesses: * * *
* * * Second. The party injured by the offense committed." There can be little doubt, we think, that the effect of these various provisions is that, with reference to criminal procedure, the "Husband and wife as to communications made to each other," are incompetent witnesses except that if either is "The party injured by the offense committed" he or she is a competent witness. Such was the holding of this court in Doolittle v. State, 93 Ind. 272. Appellant's learned counsel concede that this is the effect of these provisions, but they seek to limit the application of the phrase, "The party injured by the offense committed," so far as it includes husband and wife, to such injuries as result from the personal violence of either upon the other. This insistence is upon the theory that at common law the wife was competent to testify against her husband and the husband against the wife only in cases involving the personal safety or liberty of either; that the rule of the common law should be so sacredly upheld, in the interest of the marriage relation, that a legislative intention to abridge that rule must be clearly and explicitly stated before the courts will give it recognition. This intention, it is urged, is not apparent from the statutory provisions above quoted. This position was denied as early as the case of Hutchason v. State, 67 Ind. 449, where the wife was permitted to testify to the acts of the husband in the commission of the arson there charged. It was held that "The ...
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