Lipschitz v. People
| Citation | 53 P. 1111,25 Colo. 261 |
| Parties | LIPSCHITZ v. PEOPLE. |
| Decision Date | 20 June 1898 |
| Court | Supreme Court of Colorado |
Error to district court, Arapahoe county.
Marks Lipschitz was convicted of entering into a conspiracy to commit the crime of arson, and he brings error. Reversed.
The first count of the indictment, which is the only one material on this review, charges that the defendant and six other persons, naming them, 'feloniously, willfully, and maliciously did conspire, co-operate, and agree together to burn and cause to be burned a certain residence building of the property of Peter Winne, trustee, situate * * * in the town of Colfax, in said Arapahoe county, in the state of Colorado.' The defendant Marks Lipschitz demanded a separate trial, was convicted under the first count, and sentenced to the pententiary for two years. The statutes construed are found at Sess. Laws 1891, p. 125 (3 Mills' Ann. St. § 1294), this being the one under which the indictment was returned; and our arson statute, which is found in 1 Mills' Ann. St. § 1225 (Gen. St. 1883, § 749). They are as follows:
'Sec 1225. Every person who shall wilfully and maliciously burn or cause to be burned any dwelling house, kitchen, office, shop barn, stable, storehouse, warehouse, factory, mill, pottery or other building, the property of any other person, or any church, meeting house, school-house, state-house, court-house, work-house, jail or other public building, or any boat or other water craft, or any bridge of the value of fifty dollars erected across any of the waters of this state, such persons so offending shall be deemed guilty of arson, and upon conviction thereof shall be punished by imprisonment in the penitentiary for a term not less than one year nor more than ten years; and should the life or lives of any person or persons be lost in consequence of any such burning as aforesaid, such offender shall be deemed guilty of murder, and shall be indicted and punished accordingly.'sustain the allegation of ownership in the first count. Held, that a denial of the motion was harmless, since had it been granted, the state might have elected to proceed under the second count.
J. E. Robinson, for plaintiff in error.
Byron L. Carr, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen., and Geo. H. Thorne, Asst. Atty. Gen., for defendant in error.
CAMPBELL, C.J. (after stating the facts).
The errors assigned and the material facts may be grouped under the following heads: (1) The indictment is insufficient to sustain the verdict and sentence, or to permit the introduction of evidence thereunder. (2) The offense of arson, which was the object of the conspiracy, is one against occupancy and habitation, and not against ownership and title; and inasmuch as the defendant owned the premises subject to the lien of a trust deed, and was in possession and occupying the dwelling house thereon, when burned, he cannot be guilty of arson in burning it, or of a conspiracy to commit that crime. (3) If it be assumed that the crime of arson is one against ownership and title, and not possession or occupancy, the building in question cannot properly be said to be the property of the trustee named in the deed of trust given to secure a debt. (4) The malice necessary to be shown must be malic against the owner of the property; whereas the facts show that the malice by which defendant was actuated was malice against an insurance company which had a fire insurance policy upon the building, to obtain the amount of which was the defendant's object in burning the building. (5) The court erred in refusing to require the prosecution to elect upon which count of the indictment it would rely, and in refusing to allow the defendant to reopen his case when the prosecution made its election, and in holding certain evidence which he then offered to introduce as incompetent and irrelevant.
1. Under our conspiracy statute, the object of the conspiracy must itself be an unlawful act, if committed, and the doing of a lawful act in an unlawful way is not within its provisions. Connor v. People, 18 Colo. 373, 33 P. 159; Miller v. People, 22 Colo. 530, 45 P. 480. And since no punishment is provided for a conspiracy to do an unlawful act, except such as would be felonies or misdemeanors if committed, it would seem that the unlawful act must also be a crime. Whether or not the latter proposition be true, the avowed intention of this indictment was to charge the defendants with entering into a conspiracy to commit the crime known as arson. In apt words, the conspiracy is sufficiently alleged; but it is strenuously contended that the object of the conspiracy is not shows to be a crime. Arson is a recognized offense at common law; and under the doctrine of McNamara v. People (Colo. Sup.) 48 P. 541, it might have been sufficient, and probably would be, had the pleader stated the object of the conspiracy to be to commit the crime of arson by burning the building designated; in other words, by designating the purpose of the conspiracy by its common-law name. See, also, 2 Am. & Eng. Enc. Law, 917 et seq., and cases cited. But the pleader did not see fit to do that. He attempted to state the ingredients of the crime. In such a case the law is that, when the purpose of the conspiracy is claimed to be the commission of a crime, the indictment must contain every element necessary to constitute that offense, as fully as if the indictment was for its perpetration. State v. Parker, 43 N.H. 83; Com. v. Eastman, 48 Am.Dec. 596; West v. People, 137 Ill. 189, 27 N.E. 34, and 34 N.E. 254; Scudder v. State, 62 Ind. 13; Hartmann v. Com., 5 Pa. St. 60; 4 Enc. Pl. & Prac. 712 et seq. Now, the mere burning of the house of another is not arson at the common law or under our statute. It is only the willful and malicious burning that constitutes the crime. In this all the authorities agree. State v. Carroll, 85 Iowa 1, 51 N.W. 1159. The attorney general recognizes this, and so would have us decide that the word 'felonious' characterizes the conspiracy, and the words 'willful and malicious' qualify its object, viz. the burning; but no rule of construction that we know of will permit of such an arbitrary transposition and forced interpretation of words as this decision would require. All three of these words evidently were intended by the pleader to apply to the conspiracy; and, taking them in their connection, we can come to no other conclusion than that they do apply to the conspiracy, and not to the arson. It follows that this indictment is not merely faulty in form, but fatally defective in substance, in that it fails to aver an unlawful act as the object of the conspiracy. It is good neither under our statute nor at the common law.
2. It is conceded by counsel on both sides that, at the common law arson was a crime against the habitation, rather than against property rights. 2 Am. & Eng. Enc. Law (2d Ed.) 924, 935; 2 Bish. New Cr. Law, c. 2; 1 Whart. Cr. Law (10th Ed.) c. 11; Mary v. State, 81 Am.Dec. 60, and notes. To cite all the cases to this effect, as well as those so construing certain statutes, would unduly prolong the opinion. They are collated in the foregoing text-books and leading case. The question here is whether our statute has effected any change in the common-law rule. We think that it has. Not only are a large number of things embraced within the statute that were not subjects of arson at the common law, but the language employed evidences an intention to enlarge its common-law meaning. The phrase 'the property of any other person' relates to, and qualifies, 'dwelling house,' as clearly and fully as it does 'storehouse' or 'other building'; that is, one may commit arson by burning a storehouse, or any other building, the property of any other person,...
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