State v. Huffman.
| Citation | 69 W.Va. 770 |
| Court | Supreme Court of West Virginia |
| Decision Date | 21 November 1911 |
| Parties | State v. Huffman. |
1. Arson Indictment Value of Property.
It is unnecessary in an indictment for arson, under section 6, chapter 145, Code 1906, to charge the value of the building and the property therein separately; and an indictment charging the value of the building and contents as a whole is good on demurrer, (p. 771).
2. Criminal Law Evidence Similar Offenses.
On the trial of an indictment for arson evidence of numerous other fires and depredations suffered by the owner of the property burned, covering a series of years immediately preceding the burning of the building charged in the indictment, though not traced to defendant, is admissible on the issue whether such fire was accidental, or the work of an incendiary, (p. 772).
3. S a m k Evidence Opportunity.
The evidence showing that most of such other fires and depredations occurred on Sunday, when the owner of the property and his family were absent at church, evidence of defendant's. general habit of absenting himself from church on that day was not incompetent., on the question of opportunity of defendant to commit the other offences occurring on that day, and as tending to connect him therewith, and, under an exception to the general rule, as tending to show intent, malice and the like, and bearing on the question of his guilt or innocence of the offence charged in the indictment, (p. 775).
4. Same Trial Instructions Reasonable Doubt.
Though it is the better practice to combine them in one comprehensive instruction, it is not error on the trial of an indictment for arson, to state to the jury the law of reasonable doubt applicable to the whole case, in several distinct instructions or legal propositions to the jury. (p. 775),
5. Same Trial Instructions Already Given.
As many times decided, it is unnecessary to repeat instructions which have already been given to the jury. (p. 776),
6. Same Trial Instructions Bequests Objection to Modification Waiver.
Thoug;h, by the statute of 1907 the right is given a party to object to the modification of a proposed instruction to the jury, and if modified over his objection, to have the same as modified given as the court's instruction, and read in the order prescribed by the statute, yet, if without objection, the court is permitted to read such modified instruction as the instruction of the proponent thereof, such right will be regarded as having been waived, (p. 776).
7. Same New Trial Newly Discovered Evidence Diligence.
The rule applicable to motions for new trial based on after discovered evidence, stated in Jacobs v. Williams, G7 W. Va. 377, applied to the facts in this case, and justifying the court below in denying the motion, (p. 777).
Error to Circuit Court, Nicholas County.
C. B. Huffman was convicted of arson, and brings error.
Affirmed.
Conley & Buff and Osenton & Horan, for plaintiff in error.
William G. Conley, Attorney General, and J. 0. Henson, Assistant Attorney General, for the State.
The indictment, on which defendant was found guilty, and by the judgment below, sentenced to an indeterminate term of imprisonment in the penitentiary, charged, substantially in the language of the statute, section 6, chapter 145, Code 1906, that
the defendant "on the day of March, 1910, in said
county of Nicholas, feloniously and maliciously did burn a certain building, to-wit, a granary, the property of J. J. Reynolds, situate in the said county, which said building and the property therein was then and there of the value of two hundred dollars."
The first point of error is, that the demurrer should have been sustained. The statute reads: "If a person maliciously burn any building, the burning whereof is not punishable under any other section of this chapter, he shall, if the building with property therein be of the value of one hundred dollars or more, be confined in the penitentiary not less than three nor more than ten years; and if it be of less value, be so confined not less than two nor more than five years, or in the discretion of the court, in jail not more than one year, and be fined not exceeding five hundred dollars."
It is insisted that under this statute, the indictment should have charged separately, the value of the building and the property therein, so as to give the prisoner notice. The indictment does charge the value of the building and contents. This is all the statute requires. It is generally sufficient to charge a statutory crime in the language of the statute. State v. Gould, 26 W. Va. 268, 252; People v. Murray, (Mich.) 6 Amer. Cr. Rep. 31; 1 Bishop's New Or. Pro. (4th ed.) section 611. In Wolf v. Coim, 30 Grat. 833, the demurrer to an indictment under the same statute, was grounded on the proposition that the offense was not charged with sufficient certainty, there being no allegation that there was actually any property in the barn, alleged to have been burned, and that the property therein was not specified, or in any way stated so as to give defendant any notice of what he was called upon to answer. The Virginia court was of opinion the point was without merit, observing that the indictment was framed nearly in the language of the statute, and that there was nothing in the statute requiring that the property in the building be described independently of the building; that the term of imprisonment being fixed by the value of the building and the property therein, wholly matters of proof, the prisoner could not have been surprised by the manner of alleging the offense. This point must therefore be overruled.
The second point of error is that the court below erred in admitting on behalf of the state, (1) evidence in chief, of other fires and acts of trespass suffered by said Reynolds, covering a period of several years prior to the burning of the granary in question; and, (2) evidence of defendant's habit of absenting himself from church on Sunday.
Much evidence was admitted over the objection of the prisoner, of the burnings of storehouses, barns, fences, hay stacks, and of fires set out in the wood lands of said Reynolds; also of the poisoning of his cattle, and laying down of his fences, and of the turning of stock into his growing crops, and of other depredations suffered by him, covering the period from 1895, down to the year 1910, and showing, not that all, but that many of these things had occurred on Sunday. The state did not undertake to in any way connect the prisoner with either of these offenses. The defendant on the stand, denied all responsibility for or connection with these many offenses, and no attempt was afterwards made by the state to connect him with them, except the one charged in the indictment. When the prisoner, on his defense, put in issue his previous good character and reputation, on cross examination, and for the purpose of testing the truthfulness of defendant's character witnesses, the state was permitted to ask them whether they had not heard the defendant charged with some of those depredations, with result that one of them at least answered that he could not testify as to defendant's good character subsequent to those burnings. Counsel urgently insist that this evidence, and the evidence of his Sunday habits, was very prejudical to the prisoner, and that its admission demands a reversal of the judgment below, and a new trial.
The general rule against the admissibility of evidence of other crimes, as stated in Underhill on Cr. Ev., section 87, Walker v. Com. 1 Leigh, 574, and other authorities, is invoked. In this case, however, no attempt was made to connect the prisoner with other crimes. According to the general rule relied on, this evidence, for such a purpose would have been inadmissible. According to the attorney general, however, the evidence admitted was offered for entirely a different purpose, namely, as tending to show that the burning in question was not accidental, but the work of an incendiary. He argues that evidence of the fact that Reynolds had suffered so many prior depredations, covering a series of years immediately preceding the one charged against the defendant, of incendiary origin, tended to dispel any doubt that the fire in question was also the work of an incendiary, a fact necessary to be established before the accused could be connected therewith, and that in as much as such crimes, as in this case, are always clandestinely planned and secretly executed, and must be established in most cases by circumstantial evidence, the fact and circumstances of the other offences became most important as tending to dispel all doubt.
The authorities cited and relied on by the attorney general, and other authorities, seem to support the proposition, that where such evidence tends to show that the other fires were a part of one connected scheme or purpose of the defendant; or as tending to show that the particular fire with which the accused is charged was not accidental; or when, together with other evivence, it tends to show motive or intent, or to identify the accused with the offense charged, it is admissible. 5 Am. & Eng. Ency. Law and Pract. 633; 3 Cyc. 1007; State v. McMahon, 17 Nev. 365; State v. Ward, 61 Vt. 153, 181; State v. Hallock, 70 Vt. 159; State v. Thompson, 97 'NT. C. 496; PeopZe v. Murphy, 135 N. Y. 450, 457; PeopZe v. Molineux, (N. Y.) 62 L. E. A. 193. Note, on Evidence of other Crimes in...
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