Simmons v. State

• Citation: 129 N.E.2d 121,234 Ind. 489
• Decision Date: 05 October 1955
• Docket Number: No. 29220,29220
• Parties: Harvey SIMMONS, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 121

129 N.E.2d 121

234 Ind. 489

Harvey SIMMONS, Appellant, v. STATE of Indiana, Appellee.

No. 29220.

Supreme Court of Indiana.

Oct. 5, 1955.

Carrol F. Dillon, Robert J. Hayes, Evansville, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Richard M. Givan, Deputy Attys. Gen., for appellee.

EMMERT, Chief Justice.

This is an appeal from a judgment entered on a finding made by the court that the appellant was guilty of arson in the first degree as charged in an affidavit, upon which he was sentenced to the Indiana State Rpison for a period not less than two nor more than fourteen years. The error assigned is the overruling of appellant's motion for a new trial.

The essential part of the affidavit charging the crime is as follows:

'Russell Shelton being duly sworn upon his oath says that Harvey Simmons on or about the 4th day of June A.D. 1954 at said County and State as affiant verily believes did then and there unlawfully, feloniously, wilfully and maliciously set fire to and burn a certaion dwelling house then and there situate, of the value of Fifty Dollars ($50.00) which was then and there the property of another, to-wit: Alex Scott, then and there being contrary to the form of the Statute, in such cases made and provided, * * *.'

The evidence, when viewed most favorably to the state, discloses that Elwood Scott owned a house trailer which was on wheels. In April or May of 1954, one Eddie Stuckey, who ws a tenant of a Mrs. Ross, told Scott, the owner of the trailer, that he could move it on the land leased by him across from the Water Works Road in Vanderburgh County. No rent was promised or paid, Stuckey saying that 'it was all right to be down there, people were stealing his corn.' It was pulled there by an automobile, after which the owner took out the wheels and placed cement blocks under the chassis. The owner was living and sleeping in it at the time it burned, although he was not present when the fire occurred at about 1:00 A.M. the 4th day of June, 1954. The owner had constructed the trailer himself on an automobile chassis. He stated it was too heavy, so he set it on concrete blocks. It had a hitch to attach to an automobile, and was 8 by 15 feet in dimensions.

The owner was no more than a tenant at sufferance. Cargar v. Fee, 1894, 140 Ind. 572, 580, 39 N.E. 93; Soroka v. Knott, 1929, 90 Ind.App. 649, 653, 168 N.E. 703. ¹

Appellant insists that there was no evidence tending to prove the corpus delicti independent of the confession of appellant. With this we agree. Exclusive of the confession, there was no evidence as to what caused the fire. 'Proof of the corpus delicti means proof that the specific crime charged has actually been committed by someone. Parker v. State, 1950, 228 Ind. 1, 6, 88 N.E.2d 556, 89 N.E.2d 442, supra.' Dennis v. State, 1952, 230 Ind. 210, 216, 102 N.E.2d 650, 653.

'The rule seems to be well established generally that an extra judicial confession will not be admitted in evidence and a conviction will not be upheld until and unless the corpus delicti has been established by clear proof independent of the confession. Gaines v. State, 1921, 191 Ind. 262, 268, 269, 132 N.E. 580; Hunt v. State, supra [216 Ind. 171, 23 N.E.2d 681]; Messel v. State, 1911, 176 Ind. 214, 219, 95 N.E. 565; Griffiths v. State, 1904, 163 Ind. 555, 558, 559, 72 N.E. 563; Wharton's Criminal Law, 12th Ed., Vol. 1, §§ 359, 360; 20 Am.Jur., Evidence, § 484; 22 C.J.S., Criminal Law, § 839, pp. 1471-1472; 23 C.J.S., Criminal Law, § 916b, p. 183; Underhill's Criminal Law Evidence, 4th Ed., § 36; Annotation 127 A.L.R. 1130, 1134.' Parker v. State, 1949, 228 ind. 1, 6, 88 N.E.2d 556, 557, 89 N.E.2d 442.

'A naked confession is one which is not corroborated by independant proof of the corpus delicti. Upon such a confession made in open court, as, for example, by a plea of guilty, a conviction of any crime and sentence may be had. But in the case of all extrajudicial confessions it is the rule that the corpus delicti must be proved by additional evidence before a conviction upon the naked confession alone will be upheld. Underhill on Criminal Evidence [2d Ed.], p. 181, § 147.' Gaines v. State, 1921, 191 Ind. 262, 268, 132 N.E. 580, 581. ² In arson, the corpus delicti is not proved by mere proof that property burned. 'The 'law implies that the fire was the result of accident or some providential cause, rather than a criminal design, unless the evidence proves otherwise.' Phillips v. State [1859], 29 Ga. 105; Stallings v. State [1872], 47 Ga. 572; State v. Carroll [1892], 85 Iowa 1, 51 N.W. 1159.' Williams v. State, 1930, 90 Ind.App. 667, 677, 169 N.E. 698, 701. ³

Appellant's motion for a new tiral contends that there was a fatal variance between the affidavit and the evidence, inasmuch as the affidavit charged appellant feloneously 'burned a certain dwelling house,' when the uncontradicted proof showed that it was a house trailer that burned. The other members of the court are of the opinion that the house trailer was a 'dwelling-house' as the term is used in § 10-301, Burns' 1942 Replacement, Acts 1927, ch. 44, § 1, p. 122, but I am of the opinion that the house trailer was not a 'dwelling-house' within the meaning of this section of the statute for the following reasons:

The 75th Regular Session of the General Assembly in 1927 passed a comprehensive act on arson, the first four sections making it a felony to burn various kinds of property of another, and the last clause of each section prohibiting the burning of insured property with intent to defraud the insurer. Chapter 44, Acts 1927.

Since there are no common law crimes in this jurisdiction, McDaniels v. State, 1916, 185 Ind. 245, 113 N.E. 1004; Vinnedge v. State, 1906, 167 Ind. 415, 79 N.E. 353; Kleihege v. State, 1934, 206 Ind. 206, 188 N.E. 786, we are concerned with what the various sections prohibited, and the material parts thereof are set forth in the note. ⁴ 'In construing criminal statutes, we are not concerned with what the Legislature might have done. We are concerned only with determining the legislative intent as expressed in the statute. "It is fundamental that penal statutes are to be strictly construed; that a statute in derogation of a common right and highly penal in character is only to be applied to cases clearly within its provisions; that penalties may not be created by construction, but must be avoided by construction unless they are brought within the letter and the necessary meaning of the act creating the penalty. This requires that where there is ambiguity it must be resolved against the penalty, and only those cases brought within the staute that are clearly within its meaning and intention.' Manners v. State, 1936, 210 Ind. 648, 654, 5 N.E.2d 300, 303.' Dowd v. Sullivan, 1940, 217 Ind. 196, 202, 203, 27 N.E.2d 82, 85.' Loftus v. State, 1944, 222 Ind. 139, 143, 52 N.E.2d 488, 490.

The words 'personal property of any kind or character', as used in the third and fourth sections of the Act, are construed under the rule of ejusdem generis, which in substance is, 'that when words of specific or limited signification in a statute are followed by general words of more comprehensive import, the general words are construed to embrace only such things as are of like king or class with those designated by the specific words, unless a contrary intention is clearly expressed. Dowd v. Sullivan, 1940, 217 Ind. 196, 201, 27 N.E.2d 82; McNamara v. State, 1932, 203 Ind. 596, 600, 181 N.E. 512, and cases there cited; Yarlott v. Brown, 1923, 192 Ind. 648, 653, 138 N.E. 17; Wiggins v. State, 1909, 172 Ind. 78, 80, 87 N.E. 718; Nichols v. State, 1890, 127 Ind. 406, 408, 26 N.E. 839; City of Jeffersonville v. Nagle, 1921, 191 Ind. 70, 72, 132 N.E. 4; Marter v. City of Vincennes, 1948, 118 Ind.App. 586, 590, 82 N.E.2d 410; Chief Eagle Feather v. State, 1929, 89 Ind App. 500, 504, 167 N.E. 147; Bartles v. City of Garrett, 1929, 89 Ind.App. 349, 351, 166 N.E. 437.' Short v. State, Ind.1954, 122 N.E.2d 82, 85.

'Where there is nothing in the act itself to indicate that a word, or phrase, is used in a particular, or technical sense, it is to be taken or accepted in its ordinary and popular meaning. Massey v. Dunlap, 1896, 146 Ind. 350, 358, 44 N.E. 641.' State v. Mears, 1938, 213 Ind. 257, 259, 12 N.E.2d 343, 344. In order 'to determine the meaning of a statute it should be considered as a whole and that all its provisions should be read together. State v. Louisville, etc., R. Co., 1911, 177 Ind. 553, 96 N.E. 340, Ann.Cas.1914D, 1284; Huff v. Fetch, 1924, 194 Ind. 570, 143 N.E. 705.' Kryder v. State, 1938, 214 Ind. 419, 425, 15 N.E.2d 386, 387, 389. 'It is a well-recognized principle of construction that all of the language used in the statute will be deemed to have been intentionally used to effect the meaning of the act.' Bienz v. State, 1934, 206 Ind. 482, 484, 190 N.E. 170, 171. "It is always presumed, in regard to a statute, that no absurd or unreasonable result was intended by the legislature." Marks v. State, 1942, 220 Ind. 9, 18, 40 N.E.2d 108, 111. We will not impute to the legislature an absurd result by holding that the same act could be a crime under § 1, and result in a penalty of from two to fourteen years, and at the same time it could be a criminal offense under § 2, with a penalty of from one to ten years, or an offense under § 3 which carries a penalty of from one to three years. The Act, being criminal and highly penal, must be construed in favor of an accused, and it is quite evident that each section was intended to punish acts which were not included in other sections.

The statute on motor vehicles regulates house trailers as motor vehicles. A vehicle is defined as 'Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracts.' Section 47-1802(a), Burns' 1952 Repl...