State v. McCoy

• Decision Date: 07 May 1901
• Citation: 62 S.W. 991,162 Mo. 383
• Parties: STATE v. McCOY et al.
• Court: Missouri Supreme Court

62 S.W. 991

162 Mo. 383

STATE v. McCOY et al.

Supreme Court of Missouri, Division No. 2.

May 7, 1901.

ARSON—INDICTMENT—SUFFICIENCY—MALICE— AVERMENT—NECESSITY—INTENT.

1. Rev. St. 1899, § 1875, provides that every person who shall willfully set fire to or burn any public building belonging to any county, not the subject of arson in the first or second degree, shall on conviction be adjudged guilty of arson in the third degree. Held, that an indictment that defendants did then and there willfully and feloniously set fire to and burn a public building belonging to the county was sufficient, without averring that the burning was malicious.

2. An indictment alleging that defendants then and there willfully and feloniously set fire to a public building belonging to the county was sufficient, without averring that the acts were committed with the intent to burn and consume the building, or that the building was burned and consumed.

Appeal from circuit court, Wright county; Argus Cox, Judge.

Frank McCoy and others were convicted of arson, and they appeal. Affirmed.

E. H. Farnsworth, for appellants. The Attorney General, for the State.

SHERWOOD, P. J.

Arson in the third degree is charged in the indictment in this language: "That at said county of Wright, in the state of Missouri, on or about the 15th day of February, A. D. 1900, Frank McCoy, Pink Walker, James Bolton, and Al Ferguson did then and there willfully and feloniously set fire to and burn a public building belonging to said county of Wright, in the state of Missouri, not the subject of arson in the first or second degree, to wit, the jail of said county, situate in the town of Hartville, in said county, against the peace and dignity of the state. Thomas M. Musick, Asst. Pros. Atty." The evidence showed that the defendants, together with four other men, were in a building, 14 by 16 feet square, built of 2 by 4 scantling laid down and spiked together, and used as a county jail, in Hartville, Mo.; that the defendants were charged with burglary and larceny; that in the jail was a stove, with a fire in it, and a shovel and a piece of iron bar that had been used by workmen in fixing a window; that, while one of the defendants watched at the window, the remaining three took turn about in heating the iron bar and placing it against the 2 by 4 scantling, charring and burning the same, and that they kept up this operation until they burned a scantling in two, and then by taking hold of it they were enabled to pull it from its place in the ceiling, and thus make an opening in the roof about 8 inches wide and 18 or 20 inches in length out of which the defendants escaped. The defendants were tried, and the jury returned the following verdict: "We, the jury, find the defendants all guilty as charged in the indictment, and assess the penalty at five years each in the penitentiary. C. P. Mingus, Foreman." The defendants filed motions for new trial and in arrest of judgment, which were denied, and then appealed to this court. They rely upon the insufficiency of the indictment: First, because it does not charge that the building was burned and consumed; second, because it does not charge that the building was willfully set on fire by the defendants, with the intent to burn and consume the same; and, third, because the indictment does not charge that the crime was committed maliciously. The defendants' counsel, by instructions, raised the question that if the defendants, or either of them, burned a hole through the building mentioned in the indictment only for the purpose of escaping therefrom, and not for the purpose or with the intent of burning and consuming said building, then the defendant or defendants were not guilty of arson. The court refused to give this instruction, and the defendants excepted to the ruling of the court. No testimony was introduced on behalf of defendants, nor are they represented in this court.

Section 1875, Rev. St. 1899, under which the indictment is drawn, reads this way: "Every person who shall willfully set fire to or burn any house, building, barn, stable, boat or vessel of another, or any office or depot or railroad car of any railroad company, or any house of public worship, college, academy or school house, or building used as such, or any public building belonging to the United States or this state, or to any county, city, town or...