State v. Ferguson

• Decision Date: 15 December 1942
• Docket Number: 46027.
• Citation: 6 N.W.2d 856,233 Iowa 354
• Parties: STATE v. FERGUSON.
• Court: Iowa Supreme Court

6 N.W.2d 856

233 Iowa 354

STATE v. FERGUSON.

No. 46027.

Supreme Court of Iowa

December 15, 1942

Willard F. Russell, of Toledo, for appellant.

John M. Rankin, Atty. Gen., and Walter J. Willett Co. Atty., of Tama, for appellee.

GARFIELD Justice.

I. The appeal was perfected on February 2, 1942. On May 2, pursuant to our Rule 32, appellant served upon the attorney general and the clerk of this court notice of her desire to submit the case upon a printed abstract and brief and argument. The abstract was filed on August 10. The state has moved to strike the abstract because not filed within 120 days after the appeal was perfected, as required by section 12847, Code 1939. The motion was ordered submitted with the case. The motion must be sustained. Our Rule 32 plainly provides that "section 12847 of the Code shall apply to the filing of the abstract in a criminal case." Appellant was more than two months late in filing her abstract. Squarely in point are State v. Christiansen, 231 Iowa 525, 526, 1 N.W.2d 623, 624; State v. Evans, 229 Iowa 932, 934, 295 N.W. 433 434; State v. Dunley, 227 Iowa 1085, 290 N.W. 41.

It is nevertheless our duty under Code, section 14010 to consider the appeal. See cases cited. The record properly before us consists of a clerk's transcript. Appellant's brief and argument was also filed within the time provided by Rule 32, more than 30 days before the day of submission, and is also properly before us.

II. Appellant was tried upon a county attorney's information which accused her of arson and charged that she willfully and maliciously set fire to the dwelling house of E. V. Tuttle in the town of Traer, Tama county, in violation of section 12991.1, Code, 1939. In instructing the jury, the court defined arson as the willful and malicious burning by a person of any dwelling house that is the property of another. One of appellant's two claims to a reversal is the court's failure to submit to the jury what is said to be the included offense of burning a shop, warehouse or other building, defined by section 12991.2.

There is apparently no dispute regarding the character and use of the building which was set on fire. In construction and outward appearance it was a dwelling house. It was occupied by E. V Tuttle as his dwelling for 6 or 7 years. He slept in a room on the first floor. Upon the trial, he so testified as a witness for appellant. However, Tuttle had an office in part of the first floor where he dealt in used automobiles, tires, parts, furs and various kinds of junk. Articles in which Tuttle dealt were stored in the yard, and tires, parts, accessories and metals were kept in a portion of the downstairs of the house.

Code section 12991.1, which appellant was charged with violating, provides: "Any person who willfully and maliciously sets fire to * * * any dwelling house, kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, the property of himself or of another, shall be guilty of arson, and upon conviction thereof, be sentenced to the penitentiary for not more than twenty years."

The following section, 12991.2, provides: "Any person who willfully and maliciously sets fire or burns * * * any barn, stable or other building, * * * not a parcel of a dwelling house; or any shop, storehouse, warehouse, factory, mill or other building, * * * shall, upon conviction thereof, be sentenced to the penitentiary for not more than ten years."

Appellant argues that the jury could have found the building in question was not a dwelling house but was a "shop, * * * warehouse, * * * or other building," within the meaning of 12991.2 and that the crime therein described should have been submitted to the jury as an offense necessarily included within that charged in the information, pursuant to Code, section 13920.

At common law, arson was the willful and malicious burning of a dwelling house or outhouse appurtenant thereto, of another. State v. Gates, 197 Iowa 777, 778, 197 N.W. 908; State v. Madden, 170 Iowa 230, 234, 148 N.W. 995; 6 C.J.S., Arson, p. 718, § 1, p. 724, § 6a; 4 Am.Jur., p. 92, § 13. The above quoted statutes were enacted in 1927 as Ch. 235, Acts 42d G.A., which repealed sections 12984 to 12991 of the Code of 1924. The present section 12991.1 adopts at least substantially the common law definition of arson, enlarging it however to include a dwelling or outhouse of the accused. None of the repealed sections which dealt with criminal burnings used the term "arson." And 12991.1 is the only section of the present law which attempts to define "arson." The buildings referred to by 12991.1 are a dwelling or other building that is a parcel thereof. The buildings to which 12991.2 refers are those not a parcel or within the curtilage of a dwelling house. We think 12991.1 and 12991.2 define two separate and distinct crimes and that the crime defined by 12991.2 is not necessarily included within that defined by 12991.1 which appellant was charged with having violated. The only offenses required by Code, section 13920 to be submitted are those necessarily included within the offense charged. State v. Brown, 216 Iowa 538, 540, 245 N.W. 306, and cases cited.

It is well settled that a part of a dwelling may be used for another purpose, as in the present case, without changing its character as a dwelling. State v. Gates, 197 Iowa 777, 778, 197 N.W. 908; 4 Am. Jur., p. 93, § 14; 6 C.J.S., Arson, p. 724, § 6a. The court instructed the jury to that effect and appellant makes no complaint of the instruction (No. 6). In view of the undisputed evidence that the building in question was the dwelling of Tuttle, even if it were assumed that section 12991.2 defines an included offense, the court was justified in not submitting it to the jury. It is not error not to submit an included offense where the evidence shows the defendant guilty of the offense charged if guilty at all. State v. Bazoukas, 226 Iowa 1385, 1390, 286 N.W. 458; State v. Crutcher, 231 Iowa 418, 421, 1 N.W.2d 195, 197, and cases cited; 23 C.J.S., Criminal Law, § 1288c, p. 865.

We conclude therefore that this assignment of error is without merit because the crime charged in section 12991.2 is not included within that charged in the information and also because it appears without dispute that the building in question was the dwelling of E. V. Tuttle. As bearing on this question, see State v. Johnson, 221 Iowa 8, 12, 264 N.W. 596, 267 N.W. 91, and cases cited.

III. Appellant's remaining claim to a reversal is that the direct evidence of guilt is unbelievable and that the verdict is...