Mai v. People

• Decision Date: 22 December 1906
• Citation: 224 Ill. 414,79 N.E. 633
• Parties: MAI et al. v. PEOPLE.
• Court: Illinois Supreme Court

224 Ill. 414

79 N.E. 633

MAI et al.

v.PEOPLE.

Supreme Court of Illinois.

Dec. 22, 1906.

Error to Criminal Court, Cook County; Willard M. McEwen, Judge.

Stanley Mai and another were convicted under an indictment charging them with burning certain personal property with intent to injure an insurance company, and bring error. Reversed and remanded.

Frank T. Huening, for plaintiffs in error.

W. H. Stead, Atty. Gen., and John J. Healy, State's Atty. (Fletcher Dobyns, of counsel), for the People.

VICKERS, J.

Plaintiffs in error were convicted in the criminal court of Cook county under an indictment charging them with unlawfully, willfully, and maliciously burning certain saloon fixtures, household furniture, and other goods and chattels, with an intent to injure the Royal Insurance Company of Liverpool, England. The indictment consisted of four counts, each count of which charged plaintiffs in error with burning personal property with an intent to injure the insurer, and is predicated in its entirety upon paragraph 48, c. 38, p. 1237, Starr & C. Ann. St. 1896 of Illinois, which reads as follows: ‘Whoever willfully and maliciously burns or sets fire to, or causes to be burned or set on fire any building, or any goods, wares, merchandise or other chattels which are at the time insured against loss by fire, with intent to injure the insurer, whether such person is the owner of the property burned or not, shall be imprisoned in the penitentiary not less than one nor more than ten years.’ Plaintiffs in error were tried jointly, and the jury returned a separate verdict as to each plaintiff in error, in the following form: ‘We, the jury, find the defendant, Stanley Mai, guilty of arson with intent to defraud the insurance company in manner and form as charged in the indictment.’ The verdict as to Stanley Kolita was in the same form except the name Kolita was inserted, instead of Mai. Motions for a new trial and in arrest of judgment were overruled and plaintiffs in error were sentenced to an indeterminate imprisonment in the penitentiary.

While the bill of exceptions shows that both the plaintiffs in error were sentenced to imprisonment in the penitentiary, the record shows that the judgment of the court was against Stanley Mai alone. There is no judgment against Kolita. The judgment against Mai contains the following order: ‘Therefore it is ordered and adjudged by the court that the said defendant, Stanley Mai, be and he hereby is sentenced to the penitentiary of this state at Joliet for the crime of arson to defraud insurance company, whereof he stands convicted; and it is further ordered and adjudged that the said defendant, Stanley Mai, be taken from the bar of the court to the common jail of Cook county, and from thence by the sheriff of Cook county to the penitentiary of this state at Joliet, and be delivered to the warden or keeper of said penitentiary, and the said warden or keeper is hereby required and commanded to take the body of said defendant, Stanley Mai, and confine him in said penitentiary, in safe and secure custody, from and after the delivery thereof until discharged by the state board of pardons, as authorized and directed by law, provided such term of imprisonment in said penitentiary shall not exceed the maximum term for the crime for which the said defendant was convicted and sentenced.’

It will be observed that the judgment of the court follows the verdict, and that Mai is sentenced to the penitentiary for the crime of ‘arson to defraud insurance company, whereof he stands convicted.’ The offense set out in each count of the indictment and defined by the statute under which the indictment was drawn is a different offense from arson, either under the common law or under our statute, both in respect to the essential elements that constitute the offense and the punishment to be inflicted for its commission. Arson, which is a felony at common law, is defined to be ‘the unlawful and malicious burning the house of another.’ 2 Am. & Eng. Ency. of Law (2d Ed.) p. 917. It will be noted from the foregoing definition that the common-law offense of arson does not include an intent to injure or defraud as an essential element of the offense, and the law appears to be well settled that, in the absence of a statute, no particular intent to injure or defraud need be alleged or proven, but, when the statute makes such intent an ingredient of the offense, it must be alleged and proved as charged. 2 Am. & Eng. Ency. of Law (2d Ed.) p. 921; State v. McCarter, 98 N. C. 637, 4 S. E. 553. Paragraph 47, c. 38, Starr & C. Ann. St. 1896, p. 1237, defines the offense of arson as it existed at common law. The only preceivable difference between arson under our statute and under the common law is that our statute extends the offense to certain structures which at common law were not included in the term ‘building’ or ‘house.’ Under the statute the offense of arson is committed by the willful and malicious burning of any of the structures enumerated in paragraph 47, without alleging or proving a specific intent to injure or defraud. The offense for which the plaintiffs in...