State v. Gilligan

• Decision Date: 17 December 1901
• Citation: 23 R.I. 400,50 A. 844
• Parties: STATE v. GILLIGAN.
• Court: Rhode Island Supreme Court

50 A. 844

23 R.I. 400

STATE

v. GILLIGAN.

Supreme Court of Rhode Island.

Dec. 17, 1901.

John Gilligan was convicted of a misdemeanor, and moves for new trial. Denied.

Charles F. Stearns, Asst Atty. Gen., for the State.

J. P. Beagan, for defendant.

ROGERS, J. The indictment in this case was found under Gen. Laws R. I. c. 279, § 23, as amended by Pub. Laws, c. 736, which provides that any person who shall maliciously or wantonly in any way injure or deface any building not his own, or break the glass, or any part of it, in any such building, shall be imprisoued, etc. The offense charged was that the defendant did maliciously and wantonly injure and deface the building of one Hannah Isherwood, and did then and there break a part of the glass in said building by then and there throwing a bar of iron through a plate glass window of the value of $40, and an office window and door panel of the value of $7. In said building. The evidence showed that Hannah Isherwood was the owner in fee of the building, but that she had leased the same to one Joseph H. McElroy for five years from May 1, 1898, by written lease, and that the said McElroy was in the possession of said building under said lease at the time when the malicious mischief is charged to have been committed, it being agreed in said lease that the lessee should keep the interior of the leased premises in good repair, including the setting of glass in the windows and doors during the continuance of the lease, and that; the lessor should keep the exterior in good repair. Various exceptions were taken by the defendant to the rulings and charge of the justice presiding in the common pleas division on the jury trial, at which the defendant was found guilty. The first exception is that the allegation in the indictment that it was the building of Hannah Isherwood that the defendant defaced was not supported by the evidence, which showed that the lessee, the said Joseph H. McElroy, was in the possession of the building, and hence that the allegation should have been that it was the building of said McElroy, as otherwise there would be a fatal variance between the indictment and the proof. There is no question but that, had the building in this case been laid in the indictment as that of the lessee, the allegation would have had the support of abundant authority; but the question is whether it is fatally defective to charge it as the building of the lessor. It has been strenuously urged at the bar that the offense here charged is an offense against possession, that title is not drawn in question, that the ownership of the building must be laid in him who could have maintained trespass against the defendant for the injury committed, and that, therefore, ownership could have been laid only in the lessee in possession. The attempt to analogize the reasons for the allegation of ownership in this case with those in other cases is, to say the least, confusing, if not misleading. "Ownership," says Bishop in his work on Criminal Procedure (volume 2, §§ 137, 138), "is one thing in one offense and another thing in another. Burglary is a disturbance, not of the fee of the building regarded as real estate, but of its habitable security. Therefore in burglary ownership means any possession which is rightful as against the burglar. Under various circumstances the ownership may be laid equally well in one person or another; as, for example, in the master, or in the servant occupying under him. This is an important consideration, without which many of the cases will appear conflicting. In general, possession and occupancy by the alleged owner are all that are required. While he need not own the fee, he need not even pay rent. It is enough that it was his actual dwelling house at the time. Even a possession unlawful as against the person claiming title, but lawful as against the burglar, will suffice." Again, speaking el the ownership in arson, the same learned writer says (section 36): "Arson being an offense against the security of habitation, the ownership is properly, and perhaps in most cases necessarily, laid in any person who has the present actual occupancy, or at least the right of such occupancy. It is immaterial whether the fee is in him or not; or, if he is in actual possesion, whether another has a better right to it than he or not. Even a wrongful occupancy by one in his own right will support the allegation of ownership." In cases depending on other reasons the same writer says (section 37): "Where a statute makes punishable the burning of a structure not used for dwelling, so that the offense is not against the habitation, there is no objection to laying the ownership in the person in whom is the fee, though it is under lease to a tenant in possession." In People v. Simpson, 50 Cal. 304, 306, the court said: "We are convinced that in providing that 'every person who shall willfully and maliciously burn, or cause to be burned, any dwelling house, the property of another, in the day-time,' shall be guilty of arson, the legislature intended to include a case of this character, where the arson was committed by a tenant in possession of the property of the landlord; and in such a case it will be sufficient to allege and prove the property to have been in the landlord." In People v. Pisher, 51 Cal. 319, the offense with which the defendant was charged in the indictment amounted to arson in the second degree, as defined by section 454 of the Penal Code. The house alleged to have been burned was described as the property of one B. W. Bours. It was proven that it was his property, but that one Capurro was in possession of it under a lease from Bours; and the point was made that in that respect there was a variance between the indictment and the proof; in other words, that in an indictment for arson, the house should be described as the house of the occupant. Rhodes, J., in delivering the opinion of the court, said: "Arson, as defined by the common law, is an offense against the security of the habitation, rather than against the property which was burned (2 Bish. or. Law, § 24); but by the Penal Code, §§ 447, 448, the scope of the definition is materially extended. 'Any house, edifice, structure, vessel or other erection, capable of affording shelter for human beings,' is a 'building,' within the meaning of the chapter of the Code defining arson and providing for its punishment it is not necessary that the 'house, edifice, structure, vessel, or other erection' should have been intended for, or have been used as, a habitation; but it is sufficient if it be 'capable of affording shelter for human beings'; and for that reason it is not true that the willful and malicious burning of a building which was not intended or was not used as a habitation is an offense against the person, rather than the property. It is not necessary, therefore, in an indictment for arson of the second degree, to describe the building as the building of the occupant or tenant; but it will be sufficient to describe it as the building of the owner, though it may have been held by a tenant under a lease from the owner." In State v. Carter, 49 S. C. 265, 267, 27 S. E. 106, tried in 1897, the defendant was indicted for arson in setting fire to and burning the dwelling house of S....