Smith v. State

• Decision Date: 18 May 1887
• Citation: 5 S.W. 219
• Parties: SMITH v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

5 S.W. 219

SMITH v. STATE.¹

Court of Appeals of Texas.

May 18, 1887.

Appeal from district court, Parker county; Hon. R. E. BECKHAM, Judge.

The indictment charged that the appellant, on December 5, 1886, did "unlawfully, willfully, and feloniously set fire to and burn a certain house, to-wit, a house then and there known as the `Parker County Poor-Farm Prison,' the property of Parker county, there situate; contrary," etc. The jury found appellant guilty, and assessed his punishment at five years in the penitentiary.

The state proved positively by two witnesses that the defendant, who was confined in the poor-house, deliberately ignited some cotton, attached it to a broom, and applied it to the roof of the house, and set it afire. They did not give the alarm because they knew the poor-house officials would discover the fire. The defendant made no effort to rebut the testimony.

H. W. Kuteman, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

Appellant was indicted for, and has been convicted of, arson; the house charged to have been burned being described as "a certain house then and there known as the `Parker County Poor-Farm Prison,' the property of Parker county." Appellant and two other parties, who had been convicted and fined for misdemeanors, were sent to the poor-farm to work out their fines. When not at work, they were confined in an iron cage in the prison, which prison was a wooden building. On the day in question, while the prisoners were in the iron cage, appellant wrapped some cotton, taken from a mattress, around a broom handle, ran the same through the bars of the cage into the fire in the fire-place, and, when the cotton was sufficiently ignited, drew it back into the cage, and then ran it through the bars in the top of the cage, and held it to the roof of the house, overhead, until the shingles caught fire and were burning; a hole having been burnt through the roof before the same was extinguished by the keeper of the prison. Defendant's intent in setting fire to the house is not positively proven, nor was anything said by him at the time which tended to show the intent and purpose, beyond what his acts indicated. The other prisoners did and said nothing at the time, but as witnesses on the trial denied any complicity in the matter, though admitting that they did not attempt to interfere with or prevent defendant in his endeavors.

There is but a single bill of exceptions in the record, and that relates to omissions in the charge of the court to the jury with regard to two supposed essential features of the case, as made by the evidence. It is insisted that, inasmuch as the evidence leaves the motive and intent in doubt, and inasmuch as his intent and purpose in setting fire to the building might have been for the purpose of effecting his escape from prison, and not with any other willful or fraudulent intent, the court should have instructed the jury that, if escape was the sole object, then defendant could not be convicted. The other objection to the charge is that it failed to instruct the jury upon the law of accomplice testimony, with reference to the evidence of his two fellow-prisoners given against him at the trial.

Under our statute, arson is the willful burning of any house, and a "house" is any building, edifice, or structure inclosed with walls and covered, whatever may be the materials used for building. Pen. Code, arts. 679, 680. The burning is complete when the fire has actually communicated to a house, though it may neither be destroyed nor seriously injured; and it is of no consequence by what means the fire is communicated to a house if the burning is designed. Pen. Code, arts. 684, 685.

In his work on Statutory Crimes, Mr. Bishop says: "A jail is held to be an inhabited dwelling-house, within the statutes against arson of such houses." Bish. St. Crimes, (2d Ed.) § 207.

In Delany v. State, 41 Tex. 601, it is said by ROBERTS, C. J.: "Arson is the willful burning of a house. The house need not be consumed with fire to constitute the offense. It will be sufficient to show that a person set fire to the house, to the extent that some part of the house was on fire, unless it is made clearly to appear that it was accidental, or was done for some other object wholly different from the intention to burn up or consume the house. If, for instance, it appeared from the evidence that a person confined in prison set fire to the door to burn off the lock, so as to make his escape, or that he burned a hole in the floor or in the wall for the same purpose, it would not be arson. So it has been held by the courts of other states. People v. Cotteral, 18 Johns. 115; State v. Mitchell, 5 Ired. 350. If, however, a prisoner, or a number of prisoners in concert, should set fire to a jail without such definite purpose, but for the purpose of burning the jail sufficiently to produce the alarm of...