State v. Colgate

• Decision Date: 01 January 1884
• Citation: 31 Kan. 511,3 P. 346
• Parties: THE STATE OF KANSAS v. WILLIAM H. COLGATE
• Court: Kansas Supreme Court

3 P. 346

31 Kan. 511

THE STATE OF KANSAS v. WILLIAM H. COLGATE

Supreme Court of Kansas

January 1, 1884

Appeal from Cowley District Court.

AT the May Term, 1883, William H. Colgate was found guilty of arson in the fourth degree, and sentenced to be imprisoned in the state penitentiary for three years. He appeals. The facts appear in the opinion.

Judgment reversed and cause remanded.

W. P Hackney, Henry E. Asp, and J. F. McMullen, for appellant.

W. A Johnston, attorney general, F. S. Jennings, county attorney M. G. Troup, and Edwin. A. Austin, for The State.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

The defendant was convicted and sentenced for arson in the fourth degree; and the principal ground now urged for a reversal of the judgment of the trial court is, that such court erred in sustaining a demurrer to the defendant's plea of a former acquittal. It appears that on August 13, 1882, at about one o'clock in the morning, the grist mill of Bliss & Wood, with all its contents, including the books of account of the owners of the mill, was destroyed by fire. Some time afterward, the defendant was prosecuted criminally for setting fire to and burning the mill; and on this charge he was tried and acquitted. About five months afterward a new prosecution was instituted against him, for setting fire to and burning the books of account. To this charge he filed a plea of former acquittal, which plea was held insufficient on demurrer, on the ground that the acquittal in the first prosecution was no bar to the second prosecution. In the first prosecution it was charged that the defendant, William H. Colgate, "did unlawfully, willfully, maliciously and feloniously set fire to and burn, in the nighttime, a certain grist mill, situated in Cowley county, state of Kansas, and belonging to C. A. Bliss and B. F. Wood, partners under the firm-name and style of Bliss & Wood;" and in the second prosecution it was charged that the defendant --

"Willfully, maliciously, unlawfully and feloniously did set fire to and burn in the night-time, of the goods, wares, merchandise and chattels of C. A. Bliss and B. F. Wood, partners, doing business under the firm-name and style of Bliss & Wood, one ledger, one journal, one cash-book, one weigh-book, one grain and shipping book, and one petty account book, the said books then and there being the books of account representing and setting forth the business then and for a long time prior thereto transacted and done by the said firm of Bliss & Wood in their business as private millers and shippers of grain, flour, and mill-stuffs."

The defendant, in his plea of a former acquittal, set forth and alleged that the grist mill and all its contents, including the said books of account, were destroyed at the same time, on the same night, by the same fire, and that the burning of the mill and the burning of the books of account were simply parts and portions of one single and entire transaction. And he further alleged that the prosecution in its attempt to prove the defendant's guilt on the first charge, simply introduced evidence tending to prove that the defendant had admitted that he set fire to the books of account which were then in the mill, and that the fire spread and not only consumed the books, but also consumed the mill, with all its contents, including the books, machinery, grain, flour and all things else in the mill; and the prosecution did not attempt to prove the defendant's guilt in any other manner. And upon this evidence the court instructed the jury as follows:

"It is not necessary, however, in every case, that the accused should have entertained a specific intent to burn the building, for the burning of which he is charged with arson. For instance: if a book-keeper is employed by a firm which is engaged in operating a grist mill, for the purpose of destroying the books of account kept by him for his employers should willfully set fire to and burn such books of account in the mill, under such circumstances as that the firing and burning of such books would probably result in the burning of the mill, and such result should follow, he would be guilty of arson in so burning the mill."

"There have been a number of witnesses in this case who have testified to hearing the defendant admit that he set fire to certain books in the mill alleged in the information to have been burned, each witness giving his recollection as to what the defendant said in that regard, and as to the circumstances and manner in which he said the books were set on fire."

As the defendant's plea of a former acquittal was heard and decided upon a demurrer, all the facts alleged therein must, for the purpose of considering the ruling on the demurrer, be considered as true; and, considering these facts in that manner, did the court below err in sustaining the demurrer?

Now it must be admitted that the offenses set forth in the two informations do not appear from the informations themselves to be one and the same offense, or to be parts and portions of one and the same offense; and one does not appear to be included in the other; and the facts set forth in one information would not of themselves prove the offense charged in the other. The offense charged in the first information was the setting fire to and burning a grist mill, which is arson in the third degree; while the offense charged in the second information was the setting fire to and burning books of account, which is arson in the fourth degree. But it is clear beyond all doubt, as appears from the real facts of the case as set forth in the defendant's plea of a former acquittal, that the principal facts constituting the two alleged offenses are identically the same; and that one of such offenses could not be proved without proving the principal facts constituting the other of such offenses. Indeed, the offense charged in the first information could not be proved without proving all the facts constituting the offense charged in the second information. If the defendant was guilty under either information, he must have been guilty under both; and if he was innocent as to either of the offenses charged, he must have been innocent as to both. He could not possibly be guilty of one, and innocent of the other. This is all upon the assumption that the facts set forth in the defendant's plea of a former acquittal are true. It is not claimed that the defendant committed more than one wrongful act, and that wrongful act was the setting fire to the books of account in the prosecuting witness's mill; and all that afterward occurred were the mere consequences of that one wrongful act.

Under the statutes of Kansas, the offense of arson is divided into four degrees. The generic offense seems to be the willful setting fire to or burning property to the injury of another. This offense may, in some one or more of its different degrees, be committed at any time, and with respect to any tangible combustible property, except perhaps some kinds of real estate; and the offense may be aggravated, mitigated or modified by many circumstances, so as to place it in one or another of several of the four different degrees. And when the information or indictment charges the defendant with committing one of the higher degrees, he may be found guilty of that degree, or of any inferior degree, or of any offense included therein, or of an attempt to commit the offense. (Crim. Code, §§ 121, 122.) Of course, however, the defendant can be found guilty of the offense, or of any degree thereof, or of an attempt to commit the same, only where the facts of such offense, or the degree of which he is found guilty, are properly set forth or alleged in the information or indictment. Also, under the statutes of Kansas, if the defendant in a criminal action be convicted or acquitted, he cannot again be prosecuted for the same offense, or for any lower degree thereof, or for any offense necessarily included therein, or for any attempt to commit such offense. (Crim. Code, § 233; Act Regulating Crimes and Punishments, §§ 296-298.)

And upon general principles a single offense cannot be split into separate parts, and the supposed offender be prosecuted for each of such separate parts, although each part may of itself constitute a separate offense. If the offender be prosecuted for one part, that ends the prosecution for that offense, provided, such part of itself constitutes an offense for which a conviction can be had. And generally we would think that the commission of a single wrongful act can furnish the subject-matter or the foundation of only one criminal prosecution. Thus in Iowa, it has been held that, where a person uttered at a bank several forged checks at one time and by the same act, he committed but one offense, and that a conviction for uttering one of the checks was a bar to a conviction upon the others. (The State v. Egglesht, 41 Iowa 574; same case, 20 Am. Rep. 612.)

In Connecticut, it has been held that where a person has in his possession at the same time several forged bank notes of different banks, with the intent to pass them, and thereby defraud the person who might take them, and also to defraud the several banks, such facts constitute only one offense, and a conviction founded upon the possession of any part of such bank notes will bar a prosecution founded upon the possession of any other part of the same. (The State v. Benham, 7 Conn. 414.)

In New York, it has been held that where a defendant has been acquitted of the offense of forging and counterfeiting certain indorsements on a promissory note, he cannot be again tried for uttering and publishing as true such indorsements. (The People v. Allen, 1 Parker's Crim. Rep. 445.)

In Vermont, it...