Spears v. State

• Decision Date: 27 April 1908
• Docket Number: 13,202
• Citation: 92 Miss. 613,46 So. 166
• Court: Mississippi Supreme Court
• Parties: JACK SPEARS v. STATE OF MISSISSIPPI

46 So. 166

92 Miss. 613

JACK SPEARS v. STATE OF MISSISSIPPI

No. 13,202

Supreme Court of Mississippi

April 27, 1908

FROM the circuit court of Pontotoc county, HON. EUGENE O. SYKES Judge.

Spears appellant, was indicted, tried and convicted of arson sentenced to the penitentiary for life and appealed to the supreme court.

It was shown on the trial that the house which was destroyed by fire was occupied by Henry Bullard and wife, an aged couple, who were asleep in one room of it when the fire started; that there was joined to the house by an uninclosed passage way and roof a room used for storage of fodder; that the fire started in the fodder room, and was quickly communicated to the rest of the house. Bullard was asleep, and was awakened about eleven o'clock at night by a rustling noise in the fodder, to which he paid little attention, thinking it was caused by cats. Soon afterwards he discovered the house was afire, and he and his wife escaped from the building. The next morning one Tare arrived with pure blooded and reliable bloodhounds, owned and trained by him. The dogs were taken to the spot where the fire started, and immediately took a trail and followed it without hesitation through a circuitous route to the home of accused, where they identified him in the way peculiar to well trained bloodhounds. Other facts are stated in the opinion of the court.

Judgment affirmed.

Mitchell & Mitchell and Fontaine & Fontaine, for appellant.

Appellant was indicted for burning a dwelling house, and the testimony of Bullard showed that the fire, if set at all, was set to an old log house, which had been abandoned for more than two years prior to the burning, as a dwelling, but was joined to the dwelling house by a covered porch or passage way, the covering of which had partly fallen in and was used at the time of burning as a barn for the storing of fodder, and was full of fodder when burned. The testimony of Bullard, we think, shows conclusively that the house to which the fire was set, if any fire was set, adjoined to the dwelling house in which Bullard lived, and if any crime was committed it was in violation of Code 1906, § 1038, and not § 1036 the section under which appellant was indicted, tried, convicted and sentenced. The words "adjoining to" used in 1038 should be strictly construed in favor of appellant, and according to Webster the word "adjoin" means, to unite to; to be in contact with; to attach; and the argument that the statute says "every person who shall willfully set fire to or burn in the nighttime" is in the disjunctive, and that by setting fire to an adjoining house appellant burned the dwelling house, will not do, because appellant is indicted for setting fire to and burning in the nighttime the dwelling house of Henry Bullard, etc.

As to the conduct of the so-called bloodhounds. This is a new question before this court. The most thorough discussion of this character of testimony is found in the case of Pedigo v. Com., 103 Ky. 41, 82 Am. St. Rep., 566.

Other discussions of the subject are found in Hodge v. State, 98 Ala. 10, 13 So. 385; Simpson v. State, 111 Ala. 6, 20 So. 573; and State v. Hall, 3 Ohio N. P., 125. In the Pedigo case it is held that one of the conditions precedent to the introduction of such testimony is that there must be proof by some person who knows that the dogs in question are trained to track human beings. In the present case it was attempted to prove by the witness, Tate, that the dogs were so trained, but upon a view of the whole testimony it is conclusively established that they were not so trained. These same dogs were carried to the residence of one Jenkins to track some parties who had set fire to the barn of Jenkins. The dogs were carried to the barn and "hiked," and they actually took the trail of a cow and trailed her off into the pasture.

Tate, the owner of the dogs, admitted this to be a fact and after being taken from the cow track the same dogs took the track of a mule. From the testimony of the witness, Tate, describing the conduct of the dogs after trailing a party to a house in Ripley, it is shown that these dogs would trail at any time when they were "hiked," whether there was any trail in fact or not. This seems to be conclusive that they were not trained to track human beings, but that they would track cows and horses and perhaps any other animal as well. Who could say what they trailed from the house of Henry Bullard?

Another condition precedent as laid down in the Pedigo case is that the dogs must have been placed on the trail at a point where the evidence shows that the criminal, if there be one, had been.

This was not done in the instant case, according to the testimony of the witness, Warren, who saw the fire just as it originated, it having been set in the southwest corner of the log house. According to all the witnesses the dogs were not carried to this corner of the house at all.

The court should have excluded the testimony of witnesses, with reference to statements made by appellant because the corpus delicti had not been proved. The corpus delicti is not merely that the house burned, as was held in Sam's case, 33 Miss. 347, but that it was burned through or by some criminal agency. The presumption is, every burning is accidental until the contrary is proven. And we contend no criminal agency was shown by any witness in the case, but on the contrary all the facts and circumstances of the burning tend to corroborate the presumption of law that the burning was accidental.

No motive, ill will, or malice on the part of appellant was shown. Bullard, the man whose house was burned states that he and appellant were friendly.

The doctrine held in Sam's case, supra, namely, that the mere burning in the case of arson, and the death of a human being in a case of murder, constitute the corpses delicti, has been overruled in the case of Pitts v. State, 43 Miss. 472, which holds that not only the basis of the offense, but a criminal agency must be proved, to constitute the corpus delicti. Brown v. Com., 89 Va. 379; Winslow v. State, 76 Ala. 42; 2 Am. & Eng. Ency. of Law (2d ed.), 938, and notes; Pitts v. State, 43 Miss. 472.

The presumption of law is that every burning is accidental. Am. & Eng. Ency. of Law (2d ed.), 938, notes 1 and 2; 3 Cyc., 1003; Phillips v. State, 29 Ga. 105; Stallings v. State, 47 Ga. 502.

R. V. Fletcher, attorney general, for appellee.

It is ingeniously and ably argued that this appellant could not be guilty of capital arson because the house where the fire originated was adjoining to the dwelling house and was not the house itself.

Fire was set to a room filled with fodder. This room was not a part of the main or occupied house but there were a floor and a roof connecting this fodder room with the main rooms. It was as much a part of the house as a kitchen would be part of a house from which it projects. Tested by any rule this room was part of the dwelling house. Certainly it will not do to say that it shall not be so considered merely because of its use. It could make no difference that the owner saw proper to store fodder therein. Equally it is impossible to say that because the passage connecting the fodder with the rest of the house was not all closed up it was not a part of the dwelling house. A vast number of substantial homes throughout the country are constructed so as to attach the two main parts of the houses by an entry or passage constructed precisely as was the passage in the case at bar.

The only possible consideration that could lend color to appellant's contention is the use of the words "adjoining to" in Code 1906, § 1038. But this section is limited by its term to shop, warehouses, outhouses and other buildings not mentioned in the preceding sections. But dwelling house is mentioned explicitly in Code 1906, § 1036, the section under which this conviction was had and therefore the statute does not apply.

Coming now to the question of the bloodhound testimony, it is admitted by appellant that such testimony is competent if the dogs are shown to have been trained to track human beings, that they are of pure blood characterized by keenness of scent; that they were put on the trail at the place where it is shown that the criminal agency must have had its origin. All these requirements were met in the instant case.

It is strongly urged that the court should not have admitted the statements of defendant since they were in the nature of confessions, and the corpus delicti had not been proven. Of course this contention is completely answered...