State v. Murphy

• Decision Date: 04 September 1930
• Citation: 134 Or. 63,290 P. 1096
• Parties: STATE v. MURPHY.
• Court: Oregon Supreme Court

290 P. 1096

134 Or. 63

STATE v. MURPHY.

Supreme Court of Oregon

September 4, 1930

Department 2.

Appeal from Circuit Court, Columbia County; H. K. Zimmerman, Judge.

Edward M. Murphy was convicted of attempting to burn certain personal property with intent to defraud an insurer, and he appeals.

Affirmed.

The defendant was convicted of the crime of attempting to burn certain personal property with intent to defraud an insurer. The charging part of the indictment is as follows:

"The said Edward M. Murphy on the 12th day of May, A. D. 1929 in the said county of Columbia and State of Oregon, then and there being, did then and there wilfully, unlawfully and feloniously attempt to set fire to and burn certain personal property, towit, restaurant fixtures and other personal property, a more particular description of which is to this Grand Jury unknown, then and there contained in that certain building known and described as the New Willard Hotel situated on Block Numbered One, Central Addition to the Town of Vernonia, Columbia County, Oregon with intent then and there on part of said Edward M. Murphy to injure and defraud an insurer, to-wit: a certain insurance Company known and designated as The Pennsylvania Fire Insurance Company, said personal property above described being then and there insured by said The Pennsylvania Fire Insurance Company against loss or damage by fire for the sum of $600.00 in favor of said Edward M Murphy, all of which said facts the said Edward M. Murphy then and there well knew and in the attempt to so set fire to and burn said personal property, the said Edward M Murphy then and there wilfully, unlawfully and feloniously did set fire to and burn said building in which said personal property was contained, to-wit, that building known and described as the New Willard Hotel as above described, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."

Defendant demurred to the indictment on the ground that the indictment charged two separate crimes, to wit, attempting to burn personal property to defraud an insurer and arson.

Gordon R. Watt, of Vernonia, for appellant.

John L. Foote, Dist. Atty., of St. Helens, for the State.

COSHOW, C.J. (after stating the facts as above).

It will be noted that the indictment does not charge defendant with having maliciously burned a building. The word "malicious" is a necessary ingredient to charge arson. Or. L. §§ 1931, 1932, 1934, and 1937; 2 R. C. L. 509, § 13; 5 C.J. 559, § 31; 31 C.J. 697, § 246. There is another reason why the crime of arson is not charged in the indictment, and that is, the building burned is not alleged to have been the property of another. An owner of a building may destroy it by fire without being guilty of any crime. In order to constitute arson of any degree it is necessary that the indictment allege that the burning was of a structure belonging to another. State v. Director, 113 Or. 74, 79, 227 P. 298, 231 P. 191. Defendant was indicted under Or. L. § 1937. It was not error to overrule said demurrer.

The other assigned error is that the evidence is not sufficient to carry the case to the jury. It is contended by defendant that all the evidence...