Sawyer v. State
| Citation | 132 So. 188,100 Fla. 1603 |
| Parties | SAWYER et al. v. STATE. |
| Decision Date | 07 January 1931 |
| Court | United States State Supreme Court of Florida |
Error to Criminal Court of Record, Monroe County; J. Vining Harris Judge.
Enslow Sawyer and another were convicted respectively of burning a dwelling house and aiding and abetting in burning thereof and they bring error.
Reversed and remanded.
Syllabus by the Court.
Chapter 11812 of the Laws of 1927, now appearing in part as sections 7208 to 7212, inclusive, of the Comp. Gen. Laws, is violative of the mandatory provisions of section 16 of article 3 of the Constitution, in that said act embraces two or more separate distinct, and incongruous subjects in both its title and body, and is therefore unconstitutional, and the statutes attempted to be repealed thereby remain in full force and effect.
Arson at common law, and also under section 5106, Rev. Gen. Stats of 1920, i. e., the willful and malicious burning of the dwelling house of another, is an offense against the security of the habitation, against the possession rather than the property, and was at common law punishable by death. The offenses denounced by sections 5107 to 5114, Rev. Gen. Statutes, were not arson at common law, nor has the Legislature attempted to extend the common-law definition of arson so as to include such offenses, which remain statutory offenses separate and distinct from arson, and punishable differently. The title of chapter 11812 is therefore inconsistent and deceptive, and both the title and the provisions of the act deal with more than one subject and matter properly connected therewith.
The information upon which plaintiffs in error were convicted was, as pointed out in the motion to quash, insufficient to charge an offense under section 5106, Rev. Gen. States. of 1920, in that if failed to allege that the dwelling house alleged to have been burned was the dwelling house of any person or persons.
An indictment or information for the burning of a dwelling house under section 5106, Rev. Gen. Statutes, should allege that the dwelling house alleged to have been willfully and maliciously burned was the dwelling house of a certain person or persons, naming him or them, and the evidence to sustain such charge should show that the dwelling house alleged to have been burned was the habitation of such person or persons so designated in the indictment or information, even though some other person happened to be the real owner.
While it is generally held that a dwelling house loses its character as a hibitation when it ceases to be dwelt in, or in abandoned as a dwelling and closed up, or is converted into a place for other purposes than human occupancy, yet the temporary absence of its tenants will not take away from a house its character as a habitation or dwelling house, provided the absence is not unreasonably prolonged, and there is an intention to return.
Where a defendant is charged with arson, under said section 5106, Rev. Gen. Statutes, an intent to defraud the insurer is not an element of that offense; yet, where evidence of the corpus delicti has been introduced, the state may resort to circumstantial evidence to prove that the defendant committed the act, and the motive for such commission, such as the collection of insurance which he had on the property, or, as in this case, the collection of insurance by defendant's father, where, as here, there was evidence of statements made by the accused tending to show an intention on his part to cause the dwelling house to be burned in order that his father might collect the insurance. There was therefore no error in permitting the state to prove that the father had the house and contents insured and the amount of such insurance.
The trial court will not be held in error for denying a motion for severance based on mere apprehensions of the defendant that the interest of himself and the other defendant might prove to be antagonistic, without allegations of facts sufficient to show that such apprehensions were well founded.
In an arson case, a witness cannot, as a general rule, testify as to his opinion as to whether the fire was, or was not, of incendiary origin, that being a question for the jury to determine, and upon which they can usually form their own opinion without any need of expert advice, but there may arise exceptional cases which would justify the admission of expert opinion testimony on such question as an aid to the jury in arriving at their determination.
W. H. Malone, of Key West, for plaintiffs in error.
Fred H. Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
The first count of the information in this case charged that the plaintiff in error, Enslow Sawyer, on September 19, A. D. 1929, 'did feloniously, wilfully and maliciously set fire to, burn, or cause to be burned, a certain two story dwelling house situated at number 715 Caroline Street in the City of Key West, County of Monroe, and State of Florida, which said dwelling house was then and there the property of one Charles W. Sawyer, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Florida.'
The second count of the information charged plaintiff in error Sam Thomas Smythe, alias Sam Smith, alias George W. Wilson, as accessory before the fact to the same offense.
The third count charged plaintiff in error Smythe as principal; the language of the count being otherwise identical with the language of the first count charging Sawyer as principal.
The fourth count charged said Enslow Sawyer as accessory before the fact, in that he 'aided, abetted, counselled, hired and otherwise procured and assisted the said Sam Thomas Smythe, alias Sam Smith, alias George W. Wilson, to feloniously, wilfully and maliciously set fire to, burn, or cause to be burned, a certain two story dwelling house situated at number 715 Caroline Street, in the City of Key West, County of Monroe and State of Florida, which said dwelling house was then and there the property of one Charles W. Sawyer, contrary to the form of the statute,' etc.
The jury found Smythe guilty as charged in the third count of the indictment and Sawyer guilty as charged in the fourth count. The judgment of the court sentenced Smythe to the penitentiary for five years and Sawyer for ten years. From this judgment the defendants took writ of error.
Before pleading thereto, the defendants moved to quash the information upon various grounds, among them being that it did not charge any offense known to the laws of this state; that it did not allege whose dwelling house was set fire to and burned; nor did it aver whether the dwelling house alleged to have been burned was occupied.
The motion to quash being overruled, the defendant Sawyer moved the court to require the state to elect as to which statute the defendants were being tried under. The county solicitor announced that the prosecution was under section 7208 of the Comp. Gen. Laws. There was also a motion for severance, which was denied.
After the verdict, the defendants moved separately for an arrest of judgment upon various grounds, among them the grounds alleged in the motion to quash, and also that the information did not conform to the requirements of the statute under which the defendants had been tried, nor to the decisions of this court interpreting such statute; that the charge of the court did not conform to the allegations of the information; that the proofs submitted by the state tended to prove offenses not denounced by the statute under which the defendants were tried, and that the jury had rendered two separate verdicts, one against each defendant, although the defendants were informed against and tried jointly, a severance having been denied. The motions in arrest, and also motions for new trial, were denied. Exceptions were taken to the adverse rulings of the court in respect to the above matters and also to various rulings upon the admissibility of certain evidence, and to certain portions of the charge of the court; upon all of which rulings assignments of error were predicated.
In addition to these questions, counsel for plaintiff in error Sawyer contends in argument that the record discloses a fundamental error, which, though not assigned, the court should consider, and that is, that the statute under which the defendants were charged and tried, to wit, chapter 11812, Laws of 1927, now appearing in part as sections 7208, 7209, 7210, 7211, and 7212 of the Comp. Gen. Laws, is unconstitutional and void.
It might simplify matters to dispose of the constitutional question first.
In the recent case of Williams v. State (Fla.) 132 So. 186, decided at the present term, Mr. Chief Justice Terrell, in his opinion in that case in which the writer concurred, said:
'At common law arson was the willful and malicious burning of the dwelling house of another. It also included any building or outhouse within the curtilage of the dwelling house appurtenant thereto. It was an offense against the security of the habitation and had reference to the possession rather than the property. For this reason, it was a felony of great enormity and was punishable by death. Statutes in many states have materially changed the common-law definition of arson and apply it to the burning of all species of real and personal property. Such statutes are designed for the protection of the property as well as the security of the habitation. In the absence of statute defining and punishing arson, the common-law definition will be relied on. State v. McGowan, 20 Conn. 245, 52 Am. Dec. 336. An incomplete or unfinished structure which has never been occupied for that purpose is not a dwelling...
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