State v. Midgeley

Decision Date07 June 1954
Docket NumberNo. A--134,A--134
Citation15 N.J. 574,105 A.2d 844
PartiesSTATE v. MIDGELEY.
CourtNew Jersey Supreme Court

William J. O'Hagan, Asbury Park, for appellant (Stout & O'Hagan, Asbury Park, attorneys; William J. O'Hagan, Asbury Park, on the brief).

George A. Gray, Red Bank, for respondent (J. Victor Carton, Monmouth County Pros., Asbury Park, attorney; George A. Gray, Red Bank, on the brief).

The opinion of the court was delivered by

WILLIAM J. BRENNAN, JR., J.

A question is raised here under the double jeopardy provision of the 1947 Constitution, Art. I, par. 11, which reads, 'No person shall, after acquittal, be tried for the same offense.'

Two indictments are involved. The first charged Midgeley with arson under R.S. 2:109--1 for the burning of the 'dwelling house of one Aaron Shurman.' He was acquitted thereunder by direction of the court at the close of the State's case at the trial. The acquittal was directed because the State's proofs showed that the house was and for two years had been unoccupied, and the trial judge was of the opinion that arson under the statute was no committed 'unless the property was inhabited by some person' when burned.

Midgeley was thereafter indicted under R.S. 2:109--3(b) which in pertinent part provides that 'any person who shall willfully or maliciously set fire to * * * with intent to burn: * * * b. any dwelling house * * * or other house or building of another * * * shall be guilty of a misdemeanor.' This indictment refers to Shurman's house as a 'certain building of one Aaron Shurman, to wit, an unoccupied dwelling house of the said Aaron Shurman.' Midgeley interposed a plea of Autrefois acquit to the new indictment. The State conceded that the proofs which would be offered to support the indictment would be identical with the proofs offered to support the first indictment. The trial judge sustained Midgeley's plea and dismissed the indictment.

The State appealed and the Appellate Division reversed. State v. Midgeley, 28 N.J.Super. 491, 101 A.2d 51 (1954). The Appellate Division concluded that Midgeley was never put in jeopardy under the first indictment if it was not legally possible to convict him thereunder in light of the State's proofs and held that prosecution under the second indictment was therefore not barred. Midgeley appeals to this court of right pursuant to R.R. 1:2--1(a).

The statutory offenses captioned 'Arson and other burnings' under chapter 109 of Title 2 of the Revised Statutes R.S. 2:109--1 to R.S. 2:109--6, since superseded by N.J.S. 2A:89--1 to 6, N.J.S.A., have essentials notably different from the essentials of the common law crime of arson. The common law felony was a crime against Another's habitation, not against another's property but against his life and safety at his place of abode, that is, his dwelling house. 3 Burdick, Law of Crime (1946), p. 2 et seq. For example, it was not arson at common law for one to burn down his own home, State v. Fish, 27 N.J.L. 323 (Sup.Ct.1859). But the statutory offenses under R.S. 2:109--1, 2 and 3 which originated in sections 30, 31 and 32 of the Crimes Act of 1846 (Rev.Stat.1847, p. 265), also include the burning of or attempts to burn nondwellings and other property, and, as amended by L.1919, c. 106, p. 257, embrace not only the act of the accused in burning or attempting to burn the dwelling or other building 'of another' but also his own dwelling or other building.

Judicial interpretations of the original 1846 statute read into it a significance in the fact of occupancy or possession of the burned structure comparable to the emphasis upon the element of habitation in the common law offense. If the accused was charged with burning or attempting to burn the building of a named owner, dwelling house or not, and it appeared that the building was at the time in the actual occupancy or possession of someone else and not of the owner, the indictment was not sustained, State v. Fish, supra; State v. Lentz, 92 N.J.L. 17, 107 A. 791 (Sup.Ct.1918). The words 'of another' in the statute were construed in that circumstance to indicate the occupancy and not the ownership of the building, State v. Duelks, 97 N.J.L. 43, 52, 116 A. 865 (Sup.Ct.1922). It is to be noted, however, that no decision under the statute prior to its amendment in 1919 dealt with the construction of the statute in the situation in which the building was unoccupied at the time of the burning. In such case a persuasive argument may be made that the owner has the exclusive right to possession and that the decisions referred to did not go so far as to hold that an indictment for the burning of the owner's unoccupied building did not charge the burning of the building 'of another.'

But, however, the statute is to be interpreted in that regard prior to the 1919 amendments extending the offenses to the act of the accused in burning or attempting to burn a building 'whether it be his own or that of another,' under the amended statutes the crime of burning or attempting to burn the building of a named owner is proved despite the absence of proof that the owner was in the actual and immediate possession or occupancy of the building at the time of its burning, at least if it does not affirmatively appear that some one else had possession, State v. Snover, 126 A. 850, 851, 2 N.J.Misc. 1153 (Sup.Ct.1924), affirmed 101 N.J.L. 543, 129 A. 198 (E. & A.1925).

In the Snover case the defendant was convicted upon all three counts of an indictment. The first count charged him with setting fire to a barn not a parcel of the dwelling house, R.S. 2:109--2, and the second count charged him with setting fire to and burning a dwelling house, R.S. 2:109--1, both the property of the Harriet Willever. Upon appeal he assigned as error the refusal of the trial judge to charge the following request:

'What is set out in the first and second counts of the indictments charges the defendant with burning the barn, mill, and dwelling house of Harriet Willever. It does not appear by the testimony that any one was in the actual and immediate possession of either the mill, barn, or dwelling house mentioned in those two counts at the time of the burning of either of them, or that it was the property of Harriet Willever. Therefore, the defendants cannot be convicted under either of said counts, which requires the offense to be against the person in the actual and immediate possession of the buildings of the property of Harriet Willever.'

In finding no error, the former Supreme Court's holding, subsequently sustained by the Court of Errors and Appeals, was as follows:

'The purpose of the request, however, was to have the court charge that the amendment to the Crimes Act of 1919, c. 106, did not alter the status of the law, as defined in the cases of State v. Fish, 27 N.J.L. 323, and State v. Lentz, 92 N.J.L. 17, 107 A. 791. The amendment of 1919 was for the express purpose of changing the law as laid down in these cases. After the 1919 amendment, all that was required to sustain the conviction for statutory arson or for burning buildings was that the state proved beyond a reasonable doubt, first, the burning of the building or dwelling, and, second, either willful or malicious burning.'

It would thus appear that both lower tribunals were in error in believing that a conviction under the first indictment...

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24 cases
  • State v. Roller
    • United States
    • New Jersey Supreme Court
    • March 9, 1959
    ...Labato, supra; State v. Mark, 23 N.J. 162, 128 A.2d 487 (1957); State v. Leibowitz, 22 N.J. 102, 123 A.2d 526 (1956); State v. Midgeley, 15 N.J. 574, 105 A.2d 844 (1954); State v. Shoopman, 11 N.J. 333, 94 A.2d 493 (1953). Cf. State v. Greely, 30 N.J.Super. 180, 103 A.2d 639 (Cty.Ct.1954), ......
  • State v. Warren
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    • New Jersey Superior Court
    • July 1, 1982
    ...State v. Hoag, supra 21 N.J. at 502, 122 A.2d 628; State v. Leibowitz, 22 N.J. 102, 108, 123 A.2d 526 (1956); State v. Midgeley, 15 N.J. 574, 579, 105 A.2d 844 (1954); State v. Shoopman, 11 N.J. 333, 335, 94 A.2d 493 (1953); State v. Labato, 7 N.J. 137, 144, 80 A.2d 617 (1951); State v. DiG......
  • State v. Lucas
    • United States
    • New Jersey Supreme Court
    • June 1, 1959
    ...willful and malicious burning of the dwelling house of another, State v. Fish, 27 N.J.L. 323, 324 (Sup.Ct.1859); State v. Midgeley, 15 N.J. 574, 576--577, 105 A.2d 844 (1954). The trial court charged in a modified form (the modification did not concern the elements of arson set forth in the......
  • State v. Currie
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    • February 17, 1964
    ...the defendant had been acquitted on a charge of murder based upon a killing in the course of the robbery. See also State v. Midgeley, 15 N.J. 574, 579, 105 A.2d 844 (1954); State v. Di Giosia, 3 N.J. 413, 419, 70 A.2d 756 (1950). Other New Jersey decisions have applied the test in varying s......
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