State v. Carter

• Decision Date: 26 April 1897
• Citation: 49 S.C. 265,27 S.E. 106
• Parties: STATE v. CARTER.
• Court: South Carolina Supreme Court

27 S.E. 106

49 S.C. 265

STATE

v.CARTER.

Supreme Court of South Carolina.

April 26, 1897.

Arson —What Constitutes — Indictment — Allegation of Ownership.

1. By Code Cr. Proc. § 140, one who willfully sets fire to a building "within the curtilage * * * of any house or room wherein persons habitually sleep, whereby such dwelling house or sleeping apartment shall be endangered, " may be sentenced to death. Section 143 provides that, with respect to the crimes of arson, any house, outhouse, or shed, in which a person sleeps with a view to protect the property, shall be deemed a dwelling house; and of such dwelling house, or of any other dwelling house, the outhouses, sheds, etc., appurtenant thereto, shall be deemed parcels. Held, that setting fire to the dwelling house itself, as well as to the parcels thereof, is arson, within the penalty of section 140.

2. An indictment for arson may allege the dwelling house to be that of the person occupying it as such, or of the real owner.

Appeal from general sessions circuit court of Abbeville county; Ernest Gary, Judge.

Randolph Carter was convicted of arson, and appeals. Affirmed.

Graydon & Graydon, for appellant.

M. F. Ansel, for the State.

GARY, A. J. The defendant was indicted for arson in setting fire to and burning the dwelling house of S. L. Morris. Testimony was offered tending to show that the house burned belonged to S. L. Morris, who lived in New York, but was occupied as a dwelling house by R. W. Cowan, who had leased it for a term of five years from S. L. Morris. The defendant was convicted of arson, and rec ommended to the mercy of the court; whereupon he was sentenced to a term of five years, at hard labor, in the state penitentiary. The defendant appealed upon exceptions, the first of which is' as follows: (1) "Because his honor erred in ordering the juror John E. Brownlee to stand aside on the ground that he was opposed to capital punishment, the same not being a capital felony, and the defendant having exhausted his challenges before the said juror was called." The following statement appears in the case: "While the jury was being impaneled, and after the defendant had exhausted his challenges, John E. Brownlee, one of the jurymen in attendance upon the court, was called to the book, and, upon request of the acting solicitor, was examined by the court upon his voir dire. In answer to question by the judge, the juror stated that he was opposed to capital punishment, and was about to be ordered to stand aside, when his attorneys objected, and stated to the court that the defendant was not being tried for a capital felony, and therefore the fact that the juror was opposed to capital punishment was not sufficient ground to stand him aside. The presiding judge stated that it was a capital offense, and ordered the juror to stand aside." Section 140 of the Code of Criminal Procedure is as follows: "The willful and malicious setting fire to or burning any house, of whatever name or kind, within the curtilage or common enclosure of any house or room wherein persons habitually sleep, whereby any such dwelling house or sleeping apartment shall be endangered; * * * the person setting fire to or burning any such house as aforesaid * * * shall, upon conviction, suffer death by hanging, in the same form and manner as is now provided by law...