Martin v. State

• Decision Date: 28 June 1930
• Docket Number: A-6122.
• Citation: 289 P. 787,48 Okla.Crim. 102
• Parties: MARTIN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

289 P. 787

48 Okla.Crim. 102

MARTIN v. STATE.

No. A-6122.

Court of Criminal Appeals of Oklahoma

June 28, 1930

Syllabus by the Court.

The information in this case charges arson in the second degree but the court's instructions and the trial of the case was on the theory that the charge was arson in the first degree; such was error.

It is fundamental that the trial court should submit to the jury the charge laid in the information, defining the offense sufficiently to inform the jury what facts are necessary to establish in order to justify a verdict of guilty and failure to do so, in event of conviction, is ground for reversal.

Appeal from District Court, Mayes County; A. C. Brewster, Judge.

Dewitt Martin was convicted of arson, and he appeals.

Reversed and new trial ordered.

Jess L Ballard and Richard L. Wheatley, both of Vinita, for plaintiff in error.

Edwin Dabney, Atty. Gen., for the State.

WATTS Special Judge.

The defendant was charged jointly with Vet Thompson; he took severance and was tried in the district court of Mayes county for the crime of arson in the first degree. The information charges the offense was committed March 15, 1925; a conviction was had and the defendant was sentenced to serve a term of two years in the state penitentiary in harmony with the verdict of the jury, from which he appeals. Numerous errors are assigned going to the invalidity of the trial, verdict, and conviction. Section 2046, C. O. S. 1921, defines arson as "the wilful and malicious burning of a building, with intent to destroy it," and is divided into two degrees, as follows:

Sec. 2056. "Arson in the first degree is:

First. Maliciously burning in the night time an inhabited building in which there is at the time some human being; or,

Second. Maliciously burning in the night time a structure adjoining to or within the curtilage of an inhabited building in which there is at the time some human being, and in such a way that such inhabited building is endangered; or,

Third. Maliciously burning in the day time any inhabited building or structure in which merchandising is carried on; or,

Fourth. Maliciously burning in the night time any uninhabited building in which merchandising is carried on, or in which there is at any time any cattle, horses, hogs or sheep.

Arson committed in any other way is arson in the second degree."

Punishment.

Sec. 2057. "Arson in the first degree is punishable by imprisonment in the penitentiary as follows:

First. If committed as designated in the first paragraph of the foregoing section, for a term of not less than twenty years, nor more than thirty years.

Second. If committed as designated in the second, third or fourth paragraphs of said section, not less than ten nor more than twenty years."

Sec. 2058. "Arson in the second degree is punishable by imprisonment in the penitentiary as follows:

First. If committed in the night time, not less than five nor more than ten years.

Second. If committed in the day time, not less than two nor more than seven years."

The information charges that the defendants "did, then and there wilfully, unlawfully, maliciously and feloniously, and in the night time set fire to and burn a certain building to-wit, a dwelling house in the ...