Mclane v. The State Of Ga.

• Decision Date: 31 March 1848
• Docket Number: No. 37.,37.
• Citation: 4 Ga. 335
• Parties: Pinckney McLane, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

4 Ga. 335

Pinckney McLane, plaintiff in error. vs. The State of Georgia, defendant in error.

No. 37.

Supreme Court of the State of Georgia

MARCH TERM, 1848.

Indictment for Arson, in Habersham Superior Court. Tried before Judge Dougherty, September Term, 1847.

The plaintiff in error, together with one Thomas Heath, Perry Munroe and William Mince, were indicted at the April Tern, 1847, of the Superior Court of Habersham County, for the offence of Arson. "For that the said Thomas Heath, Perry Munroe, William Mince and Pinckney McLane, on the 10th day of February, 1842, with force and arms, in the County aforesaid, maliciously, wilfully and feloniously, did set fire to and burn a house, used as a dwelling house, in the night time—the property, and in the possession of Moses Horshaw, in the County of Habersham; the said house not being then and there, in a town or city or village."

"And the Jurors aforesaid, upon their oaths aforesaid, do further charge and accuse John Heath, of the County and State aforesaid, with the offence of being accessory before the fact.— For that he, the said John Heath, in the County aforesaid, before the said felony was committed, in form aforesaid, to-wit: on the 10th day of February, in the year aforesaid, in the County aforesaid, did feloniously, maliciously, wilfully and unlawfully incite, move, procure, counsel, hire and command the said Thomas Heath, Perry Munroe, William Mince and Pinckney McLane, the said felony in manner and form aforesaid, to do and commit, contrary to the laws of said State, the good order, peace and dignity thereof."

The plaintiff in error was placed upon his trial, at the October Term, 1847, of said Court.

During the progress of the case, the defendant below offered in evidence the Interrogatories of Isaac Wilkins and John Wilkins. The Court rejected the testimony, on the ground that Interrogatories could not be received for the defendant in a criminal case, to which decision defendant below excepted, and error has been assigned.

The evidence disclosed, that a house belonging to Moses Horshaw was burned in the night-time, in January or February. 1842, but no knowledge of the perpetrators came to the prosecutor, (Horshaw,) until October Term, 1846. The house, it seemed, was built for a storehouse, and shelved as such, but never used as such—witness had used the house as his dwelling house. It stood some 60 yards from the old dwelling house of the family of the prosecutor; his family, at the time of the burning, and for several years previous, lived in Clarksville. The prosecutor owned a gold mine near by, and for two years, when he came to attend his mine, slept in the house afterwards burnt. There was a bedstead and bed-cord in the house when burnt, although no one had slept there for six months previous.

The defendant was proved to have been present, at the time the house was burnt, and the testimony was contradictory as to how far he participated in it. It is unnecessary for the points made before this Court, to state that testimony. It was proven that John Wilkins, Isaac Wilkins and Henry Heath, were present at the same time, and were not included in the indictment. All agreed at the time, that if any one disclosed the fact, the others should kill him. Upon this point, also, the evidence did not agree.

The Jury found the defendant, Pinckney McLane, guilty. Whereupon, (by consent of the Solicitor-General,) counsel for defendant, moved in arrest of judgment, and for a new trial.

In arrest of judgment—

1st. That the indictment does not shew that the house burned, was the dwelling house of any one.

2d. That the indictment showed upon its face that it was barred by the Statute of Limitations, and did not show on its face any thing by which the effect of the Statute could be avoided. 3d. That the indictment does not show that the house burned, was situated within the jurisdiction of the Court.

4th. That the count, in the indictment in which the defendant was charged, does not conclude in the words required by the Statute.

And for a new trial—

1st. Because the verdict was contrary to the evidence.

2d. Because the Court erred in refusing to charge the Jury, that it was necessary to be proved that the house burned, either was the permanent abode of the prosecutor, or some part of his family, or that it had been so, and had been left with an intention to return and use it again as such.

3d. Because the testimony showed that the house burned, was not Horshaw's dwelling-house, in the meaning of the law.

4th. Because the testimony showed that the perpetrators of the offence were known at the time it was committed, to others besides those indicted, and there was no evidence that the offenders were unknown to any one but the prosecutor.

Both of which motions were overruled by the Court; to which decisions the defendant below and plaintiff in error excepted, and for grounds of error assigns—

1st. That the Court erred in rejecting the testimony of John Wilkins and Isaac Wilkins, taken by interrogatories, and offered by the defendant.

2nd. That the Court below erred in overruling the motion of defendant, in arrest of judgment, made on the following grounds, viz:

First, That the indictment does not show that the house burned, was the dwelling-house of any one.

Second, That the indictment showed upon its face that it was barred by the Statute of Limitations, and did not show on its face any thing by which the effect of the Statute could be avoided.

Third, That the count of the indictment in which the defendant was charged, does not conclude in the words required by the Statute.

3d. That the Court erred in overruling the motion for a new trial made by the defendant, on the following grounds, viz.:

That the testimony showed that the house burned was not Horshaw's dwelling house, in the meaning of the law.

That the testimony showed, that the perpetrators of the offencewere known at the time it was committed, to others besides those indicted, and there was no evidence that the offenders were unknown to any one but the prosecutor.

Underwood, Overby and Hull, for the plaintiff in error, cited and commented on the following authorities: Russell & Ryan, SO, 140. Leach, 186, 771, 877. Russell on Crimes, 806. East, P. C. 496, 7, 8. Roscoe, Or. Ev. 260, 270. Archb. Cr. P. 284, 90. People vs. Reeder, 1 Wheel. Cr. Cas. 418. 1 Hale 305. 25 Eng. Com. Law Rep. 452.

Walker, Solicitor-General, and Hillyer, contra.

By the Court. —Warner, J., delivering the opinion.

The plaintiff in error excepted to the decision of the Court below, in rejecting the testimony of John Wilkins and Isaac Wilkins, taken by interrogatories and commission, as provided by the Act of 1811, on the part of the plaintiff in error, who was the defendant below.

We think there was no error in the decision of the Court, in rejecting this testimony. The causes contemplated by the Act of 1799 and the Act of 1811, were civil causes, in which the testimony of absent witnesses is authorised to be taken by Commissioners, and not criminal causes. Where a witness resides beyond the jurisdiction of the State, and the compulsory process of the Court, for obtaining witnesses in his favor, could not be rendered available for a defendant in a criminal cause, we do not intend to be understood as deciding that testimony in his favor might not be taken, under such rules and restrictions as the Court in its discretion might adopt, by interrogatories and commission. We leave that an open question, to be determined whenever it shall arise.

The second assignment of error is. that the Court erred in overruling the motion of defendant in arrest of judgment, on the ground that the indictment does not shew, that the house burned was the dwelling house of any one.

The indictment charges that the defendant, with force and arms, in the county aforesaid, maliciously, wilfully, unlawfully and feloniously, did set fire to and burn a house, used as a dwel- liny house, in the night time, the property of Moses Horshaw, in the county of Habersham. The indictment charges, that the house burned, was used as a dwelling house, the property of the prosecutor. "Arson is the malicious and wilful burning of the house or out-house of another. The wilful and malicious burning of the dwelling house of another, on a farm or plantation, or elsewhere, (not in a city, town or village,) shall be punished by imprisonment and labor in the Penitentiary, for any term not less than five, nor more than twenty years." Prince\'s Dig. 027. Every house for the dwelling and habitation of man, is taken to be a mansion house, wherein burglary may be committed. Roscoe\'s Crim. Ev. 261. A loft, situated over a coach house and stables, and converted into lodging rooms, has been held to be a dwelling house. 2 Russell on Crimes, 13. We are of the opinion, the indictment charges the offence sufficiently plain, that the nature of it may have been easily understood by the jury, as required by the penal code. Prince, 658.

Another ground of error assigned is, that the Court below refused to arrest the judgment, on the ground that the indictment showed upon its face, that it was barred by the Statute of Limitations, and did not show on its face anything by which the effect of the Statute could be avoided. By the Penal Code of 1833, it is declared, "In all other cases (except murder) where the punishment is death, or perpetual imprisonment, indictments shall be filed, and found in the proper Court, within seven years next after the commission of the offence, and at no time thereafter. In all other felonies, the indictments shall be found, and filed, in the proper Court, within four years next after the commission of the offence, and at no time thereafter. Provided nevertheless, that if the offender shall abscond from this State, or so...