State v. Hanks

• Decision Date: 09 June 1917
• Docket Number: 21,265
• Citation: 101 Kan. 200,165 P. 865
• Parties: THE STATE OF KANSAS, Appellee, v. WILLIAM HANKS, Appellant
• Court: Kansas Supreme Court

165 P. 865

101 Kan. 200

THE STATE OF KANSAS, Appellee, v. WILLIAM HANKS, Appellant

No. 21,265

Supreme Court of Kansas

June 9, 1917

Decided January, 1917.

Appeal from Saline district court; DALLAS GROVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ARSON IN THIRD DEGREE--Sufficient Information. In a prosecution for arson in the third degree an information is not fatally defective because it fails to allege that the property was at the time insured against loss or damage by fire.

2. SAME--Motion to Quash Information--Properly Denied. In a prosecution under section 57 of the crimes act (Gen. Stat 1915, § 3425) for arson in the third degree the information charged that defendant burned certain personal property which was insured in The Sun Insurance Office, with the intent to defraud the insurer. A motion to quash the information on the ground that it did not allege that the property was insured against loss by fire is held to have been properly overruled.

3. SAME--Charge of Conspiracy--Sustained by Evidence. The evidence examined, and held sufficient to sustain the charge of conspiracy to burn and the burning of the property charged in the information.

4. SAME--Motion for New Trial--Properly Denied. For reasons stated in the opinion the action of the trial court in denying the motion for a new trial is approved.

G. A. Spencer, and A. R. Buzick, jr., both of Salina, for the appellant.

S. M. Brewster, attorney-general, W. B. Crowther, county attorney, L. W. Hamner, C. W. Burch, B. I. Litowich, and La Rue Royce, all of Salina, for the appellee.

OPINION

PORTER, J.:

William Hanks and Robert Kelly were jointly charged with a conspiracy to burn and with having burned the furniture in Kelly's house, which was insured in The Sun Insurance Office, with the intent to defraud the insurer. Hanks demanded and was given a separate trial, and was tried and convicted of arson in the third degree. Kelly had made an oral and written confession as to the facts of the conspiracy, and was a witness for the state. After the conviction of Hanks the charge against Kelly was dismissed.

On the hearing of the motion for a new trial Kelly repudiated his confession, and attempted to exonerate Hanks. He was immediately arrested and placed in jail on a charge of perjury, and the hearing was postponed several days. Later he testified, again reiterating his confession, and said that his repudiation had been procured at the suggestion of Hanks; that his brother had also told him that the attorneys for Hanks had said that the charge against him having been dismissed there was no reason why he might not testify in favor of Hanks. The court overruled the motion for a new trial, and Hanks appeals.

There was a motion to quash because the information did not allege that the insurance on the furniture was against loss by fire, and it is insisted that the information was fatally defective in this respect, because the insurance might have been against loss by tornado or lightning, or some hazard other than fire. The information was drawn under section 57 of the crimes act (Gen. Stat. 1915, § 3425), which defines arson in the third degree as the burning of "any building, boat or vessel, or any goods, wares, or merchandise, or other chattels, which shall at the time be insured against loss or damage by fire, with intent to defraud or prejudice the insurer," etc. The defendant cites in support of his contention the following statement from 5 Corpus Juris, 567:

"So it must be alleged that the property burned was at the time insured against loss or damage by fire."

We have carefully examined nearly every case cited in the note. The majority of them do not support the text, although a few of them do. In many of the cases the indictment expressly charged that the property was insured against loss by fire, and in several of the cases the question is not mentioned. This court has already taken the contrary view in The State v. Jessup, 42 Kan. 422, 22 P. 627, where an indictment worded substantially as the one in the present case was held sufficient as against a motion in arrest of judgment. The defendant seeks to draw a distinction between the two cases because there was no motion to quash the information in the Jessup case. In the opinion, however, independently of the manner in which the question was raised, it was said:

"We think that the averments of the information as made, were in legal effect equivalent to a charge that the barn, at the time of its destruction, was insured against loss or damage by fire. It is a principle of pleading that whatever is included in, or necessarily implied from, an express allegation, need not be otherwise averred. (Baysinger v. The People, 115 Ill. 419, 5 N.E. 375.) The defendant, the court and the jury all well understood from the information the offense with which the defendant was charged; this is too clear to admit of serious doubt." (p. 424.)

In Hart v. State, 181 Ind. 23, 103 N.E. 846, the indictment alleged that the property was insured in a policy which had been issued by the Connecticut Fire Insurance Company of Hartford, Conn. The statute contained the same requirement as ours. The motion to quash was based solely upon the absence of a direct averment that the insurance was against loss or damage by fire. The court held the indictment sufficient "since the name of the company standing alone, would warrant the inference that the insurance was against fire loss, and the further allegation that the property was fired to defraud that company compels such inference." (Syl. P 4.) It was said in the opinion that it was necessary to allege that it was insurance against loss or damage by fire, but that the Indiana code of criminal procedure "requires no greater degree of certainty in criminal pleadings than is required in civil ones," and that "certainty, to a common intent, at least under the code system, is attained when the pleading shall be deemed to allege all that can be implied from the direct allegations therein, by a reasonable and fair intendment." (p. 25.)

In the case at bar the name of the insurance company mentioned in the information does not contain the words "fire insurance," but it seems absurd to contend that the defendant was not fully informed of the exact nature of the charge against him. The insurance must necessarily have covered the kind of loss naturally resulting from the act of setting fire to the property. If the insurance had been against some kind of loss other than by fire, burning the...