Lavelle v. The State

• Citation: 36 N.E. 135,136 Ind. 233
• Decision Date: 09 January 1894
• Docket Number: 17,002
• Parties: Lavelle v. The State
• Court: Indiana Supreme Court

36 N.E. 135

136 Ind. 233

Lavelle v. The State

No. 17,002

Supreme Court of Indiana

January 9, 1894

From the Pike Circuit Court.

The judgment is affirmed.

A. J Padgett, C. K. Tharp, F. B. Posey, D. Q. Chappell, E. P Richardson and A. H. Taylor, for appellant.

A. G Smith, Attorney-General, and W. E. Cox, Prosecuting Attorney for State.

OPINION

Howard, C. J.

The appellant was indicted and tried for arson. On the verdict of the jury, he was convicted of the crime; and, after the overruling of a motion for a new trial, and also a motion in arrest of judgment, he was sentenced to imprisonment in the State prison for eight years, and fined.

The motion for a new trial, and the reasons therefor, are not set out in the record, and the only assignment of error argued by counsel is that the court erred in overruling the motion in arrest of judgment. This motion was as follows:

"The defendant moves the court for arrest of judgment in the above entitled cause, for the reason that the second count in the indictment (being the count upon which defendant was convicted) does not state facts sufficient to constitute a public offense."

The second count of the indictment is in these words:

"And the grand jurors aforesaid, upon their oath aforesaid, do further present that James C. Lavelle, Michael Lavelle and Aaron B. Hawes, on the 7th day of October, A. D. 1891, at and in the county of Daviess, in the State of Indiana, did then and there unlawfully, willfully, maliciously and feloniously set fire to, burn and thereby destroy large parts of the county court house, situated in Daviess county in the State of Indiana, which was then and there the property of said Daviess county, and which parts of said county court house so burned and destroyed as aforesaid was then and there of the value of eight thousand dollars, and which said county court house was then and there of the value of fifty thousand dollars."

The statute upon which the indictment was based, being an amendment of section 1927, R. S. 1881, adopted March 9, 1891 (Acts 1891, p. 402), is, so far as we need set it out, as follows:

"Whoever willfully and 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 or attempted to be 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 burned, or attempted to be burned."

Counsel for appellant contend that the second count of the indictment above set out is bad, as "it does not charge that appellant did set fire to, burn, and destroy the court house or anything else, but it charges that he 'did set fire to, burn, and thereby destroy large parts of the county court house.' In other words, it charges that he set fire, not to the court house, but to 'large parts' of it."

It would seem that the mere statement of counsel's contention is its own sufficient refutation. Setting fire to a part of a thing is certainly setting fire to the thing itself.

It may be admitted that the count in the indictment is not artistically drawn. It is almost wholly unpunctuated. Yet taking the words just as they stand, and punctuating the clauses according to the rules of grammar, we think that the language will be found clear to a common intent, and will constitute a plain and intelligible charge of the crime intended to be charged by the pleader, to wit, that the appellant and the others indicted...