State v. Christendon

Decision Date11 April 1970
Docket NumberNo. 45567,45567
Citation468 P.2d 153,205 Kan. 28
PartiesSTATE of Kansas, Appellant, v. Kenneth CHRISTENDON, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. A necessary element of the crime of first degree arson as defined in K.S.A. 21-581 is that the building burned be the property of another person.

2. When the owner procures another to burn a building of the owner with intent to injure or defraud an insurrer as proscribed by K.S.A. 21-584, such burning is not a willful burning of the property of another person as defined in K.S.A. 21-581.

3. The defendant in a criminal proceeding may present factual matters outside the accusatory pleading in support of a plea in abatement which may render the pleading invalid, or which may tend to impeach the validity of such pleading.

4. In an appeal from an other dismissing a charge of first degree arson the record is examined and it is held no error was committed.

Donald H. Humphreys, County Atty., argued the cause and Kent Frizzell, Atty. Gen., and Larry E. Keenan, Special Asst. County Atty., were with him on the brief for appellant.

L. James Berglund, Great Bend, argued the cause and was on the brief for appellee.

FROMME, Justice.

The State of Kansas appeals from an order dismissing a charge of first degree arson (K.S.A. 21-581) filed against Kenneth Christendon. The charge, as contained in the amended information, describes the property burned as the Parrish Hotel in Great Bend, Kansas, and alleges it was the property of C. C. (Monte) Parrish, the owner thereof, and Bonnie Evitt and other persons, the occupants thereof.

Prior to trial the defendant presented a motion to the court in the nature of a plea in abaterment. In support of the motion a transcript of the testimony given at the preliminary hearing was presented to the court. No evidence appears in the transcript to refute the testimony that the owner of the hotel hired the defendant to burn the property. On oral argument the state admitted that the evidence at a trial would establish that defendant, Christendon, burned the hotel at the request of the owner and that Christendon was motivated by some anticipated reward from the owner. The district court ordered the charge of first degree arson dismissed.

A separate charge of first degree arson against the owner, C. C. (Monte) Parrish was also dismissed. It should be noted that the order of dismissal in the Parrish case was affirmed on appeal by this court, (See State v. Parrih, 205 Kan. --, 468 P.2d 143.) Based upon our holding in that case a necessary element of the crime of first degree arson as defined in K.S.A. 21-581 is that the building burned be the property of another person.

However, Parrish was convicted of insurance arson and third degree arson. (See State v. Parrish, 205 Kan. --, 468 P.2d 143.)

The trial court held in the present case that Christendon, who applied the torch to the property at the request and procurement of the owner, could not be guilty of a more serious crime than the owner who hired him. We agree.

First degree arson is defined by K.S.A. 21-581 as follows:

'That any person who willfully sets fire to or burns or causes to be burned, or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, such property being the property of another person, shall be guilty of arson in the first degree, and upon conviction shall be punished by confinement and hard labor for not less than two nor more than twenty years.' (Emphasis added.)

It is not necessary to cite the cases which have previously construed this statute. These cases appear in State v. Parrish, 205 Kan. 178, 468 P.2d 143, which supports the trial court's holding.

The controlling question in the present case is whether a person procured or hired by the owner to burn a building of the owner may be held guilty of first degree arson as defined in K.S.A 21-581 when the building is burned with an intent by the owner to injure or defraud an insurer as proscribed by K.S.A. 21-584.

In an annotation appearing in 54 A.L.R. p. 1236 the author, commenting on the case of State v. Craig, 124 Kan. 240, 259 P. 802, says:

'The CRAIG CASE seems to be the only case in which the courts have discussed the effect of a subsequent ratification by the owner of the burning of a building. However, in a number of other cases, the courts have discussed the criminal liability of one who burns a building with the sanction of owner at the time of the burning, and have held that such a person is not guilty of arson, since, at common law and under most statutes, one cannot be criminally liable for burning his own building, and an agent cannot be more liable than his principal would be if he did the act. (Citing cases.)'

In 5 Am.Jur.2d, Arson and Related Offenses, § 23, p. 818, it is said:

'If the owner in possession is not guilty of arson in burning his own property, then one who assists the owner in burning it or who burns it at the owner's request is not guilty of arson, for the agent's guilt can only be coextensive with that of the principal.'

See also 6 C.J.S. Arson § 15, p. 735.

In this state every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any felony before the fact, shall be guilty of the offense in the same degree as the principal in the first degree. (K.S.A. 21-105.)

The Ohio Supreme Court in holding an agent's guilt was coextensive with the owner who procured his own property to be burned said in Haas v. State, 103 Ohio St. 1, 132 N.E. 158, 17 A.L.R. 1164:

'It is but the application of ordinary logic to say that if the aider and abettor is guilty of the same crime as the principal, and may be prosecuted as a principal, that the principal is guilty of the same crime as the aider and abettor; that in law the action of the one is treated as the action of both, and that the actions of both are no different than though the separate acts of each were performed by one person. * * *' (p. 5, 132 N.E. at 159)

Under statutes similar to K.S.A. 21-581 the cases are quite uniform in holding that an agent who burns the owner's building at the quest of the owner cannot be held guilty of burning the property of another. (Haas v. State, supra; Commonwealth v. Makely, 131 Mass. 421; State v. Haynes, 66 Me. 307; Roberts v. The State, 7 Cold. (42 Tenn.) 359; Heard v. State, 81 Ala....

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4 cases
  • State v. Bollinger
    • United States
    • Kansas Supreme Court
    • June 26, 2015
    ...P.3d 195 (2004). It is an essential element of the crime of arson that another party have an interest in the subject property. State v. Christendon, 205 Kan. 28, Syl. ¶ 1, 468 P.2d 153 (1970). This court has held that the State is not required to establish exactly what the nature of the “an......
  • State v. Rodriguez, 82,454.
    • United States
    • Kansas Supreme Court
    • July 14, 2000
    ...may procure another to burn his or her property to the extent that such owner has the authority to do so. See State v. Christendon, 205 Kan. 28, 30-31, 468 P.2d 153 (1970). The fact that a person has an interest in property, however, does not give that person the right to burn the property ......
  • State v. Durant
    • United States
    • Utah Supreme Court
    • November 15, 1983
    ...that he cannot be convicted because he acted at the owner's direction is without merit. The defendant relies on State v. Christendon, 205 Kan. 28, 468 P.2d 153 (1970), in which the Kansas Supreme Court held that a defendant who set fire to a hotel at the owner's request could not be convict......
  • Riddick v. State
    • United States
    • Arkansas Supreme Court
    • November 24, 1980
    ...request, as his agent, cannot be guilty of arson. To support his contention appellant relies on a single Kansas case, State v. Christendon, 205 Kan. 28, 468 P.2d 153 (1970). In that case the owner of the burned structure had admitted hiring Christendon for the purpose of committing arson. T......

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