State v. Moore

• Decision Date: 31 October 1875
• Citation: 61 Mo. 276
• Parties: STATE OF MISSOURI, Respondent, v. WM. J. MOORE, Appellant.
• Court: Missouri Supreme Court

61 Mo. 276

STATE OF MISSOURI, Respondent,

v.WM. J. MOORE, Appellant.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Dade County Circuit Court.

J. F. Duckwall, for Appellant.

I. The indictment is insufficient, and no testimony could be introduced under it, and defendant could not be convicted upon it.

II. The house burned was, quoad the indictment, the house of the defendant, and it was not arson if he burned it.

The language of our statute, “the house of another,” is the language of the common law definition of arson, viz: “the willful and malicious burning of the house of another.” (4 Blackst. Com., 220; Whart. Am. Crim. Law, § 1658; Bish. Crim. Law, §§ 38, 39, and cases cited; Id., § 43; Whart. Am. Crim. Law, §§ 1671, 1672, 1674, and note citing §§ 250, 1577; 2 Bish. Cr. Law, 23; People vs. Van Blarcum, 2 Johns., 105.) “Arson is an offense against the security of the habitation rather than the property. When, therefore, we say that the house burned must be the house of another, the meaning is, that it must be that of another to occupy.” (2 Bish. Cr. Law, § 39, and cases cited.) If a tenant burn the house leased it is a waste, or a malicious trespass under our statute. The house, in arson, is the same as the house in burglary, and one can no more commit arson by burning his own dwelling, than he can burglary by breaking into his own house (except that if there be a human being in the house at the time, the act is made arson in the first degree under our statute). Suppose that Nancy Adkins, the pretended owner, had set fire to the house occupied by the defendant. Whose house would have been burned? Would she not have been guilty of arson for burning the house of another? (2 Bish. Crim. Law, § 40.) The house occupied by a tenant is his house--his “castle”--and not that of the landlord.

Instruction No. 2 given for the prosecution was erroneous in declaring that if Mrs. Adkins was entitled to the possession of the house, her ownership was sufficiently shown. Mere right of possession does not constitute ownership. Instruction No. 3 was faulty for the same reason, and because it declared that, as Lee's widow, she was as a matter of course entitled to the possession. The evidence fails to show that the house was her husband's mansion house.

III. There was a fatal variance between the allegations of the indictment and the proof as to the ownership of the house burned.

IV. The testimony all taken together is insufficient to warrant a conviction.

V. The court erred in permitting Mary J. Moore, the wife of the defendant, to testify, she being an incompetent witness, by reason of the marriage relation.

Hockaday, Att'y Gen'l, for Respondent.

I. The words “house and building,” are used as synonomous terms in the indictment. (State vs. Ellis, 4 Mo., 474; Brown vs. Commonwealth, 8 Mass., 59; State vs. Gibert, 13 Vt., 647; People vs. Smith, 15 Cal., 408; Com. vs. Churchill, 2 Mat., 119; United States vs. Porter, 6 McLean, C. C. R., 186; 3 Yeates, 417.)

II. The defendant was indicted under section 5, p. 454, Wagn. Stat., which describes an offense against the destruction of property, and not an offense solely against the habitation of a person, as was arson at common law.

III. A tenant may commit arson under our statute. (10 Ohio, 287.) A party may be convicted of arson for burning his own house. (19 N. Y., 537-540; 3 How. Pr., 226.)

SHERWOOD, Judge, delivered the opinion of the court.

The defendant was indicted and convicted of arson. The indictment is based on sec. 5, (Wagn. Stat., 454) which designates and provides for punishment of arson in the third degree. A number of errors have been assigned as cause for reversal of the judgment below, and they will be briefly noticed.

I.

There is no merit in the point that the indictment charges that the defendant burned “a house or building,” these words being evidently used as terms of synonomous import, (State vs. Ellis, 4 Mo., 474) and intended to designate one and the same building; and therefore there is no uncertainty as to the allegation in reference to the subject matter of the offense--nor the charge the accused was called upon to meet. (Brown vs. Commonwealth, 8 Mass., 59; Wagn. Stat., 1090, § 27.)

II.

Mary J. Moore, the woman who was living with the defendant at the time of the burning, as his wife, was a competent witness, for the reason that a prior marriage of defendant with one Mary Cavender was proved in the most satisfactory manner by the justice of Dade county, who performed the ceremony less than two years before the trial, and, the loss of the record of the marriage having been established, the docket of the justice clearly confirmed his statements in reference to the matter. It is true the magistrate could not state whether the Mary Cavender, who was produced in court, was the same person with whom the marriage of defendant took place, but this was not necessary. Identity of name is prima facie evidence of identity of person, as this court has held on more than one occasion. (Flournoy vs Warden, 17 Mo., 435; Gitt vs. Watson, 18 Mo., 274; 2 Greenl. Ev., § 278, d.) In addition to that, the marriage with Mary Cavender was not controverted, and it was proved by one witness who had known her from girlhood, that she lived in Dade county, where the marriage of defendant took place, and was known by the name entered on the docket of the justice as having been married to defendant. (1 Greenl. Ev., § 339; 3 Id., § 206.) For the above given reasons no error was committed in holding Mary J. Moore as incompetent to establish the marriage of herself to the defendant in Cedar county, subsequent in date to that testified to by the justice; and besides it was not shown, nor attempted to be shown, but that the first marriage, whose validity was unquestioned, remained still of binding force.

III.

There is no just ground of complaint as to the instructions given for the State, or refused the defendants, those given on either side having presented the law of the case, as a whole, with sufficient and substantial clearness. The chief ground, however, of reversal on which defendant relies is the entire insufficiency of the evidence to sustain the charge, and the alleged fatal variance between the allegation in the indictment that the property burned was that of Mrs. Noah Adkins, and the evidence offered in support of that allegation; the defendant contending that...