State v. Mutschler

• Decision Date: 02 March 1927
• Docket Number: No. 5263.,5263.
• Citation: 55 N.D. 120,212 N.W. 832
• Parties: STATE v. MUTSCHLER.
• Court: North Dakota Supreme Court

55 N.D. 120

212 N.W. 832

STATE

v.MUTSCHLER.

No. 5263.

Supreme Court of North Dakota.

March 2, 1927.

Syllabus by the Court.

An information under section 9849, C. L. 1913, which fails to allege malice, either in the language of the statute or otherwise, is insufficient to charge the crime of arson.

An allegation that the defendant did “willfully, unlawfully, and feloniously set fire to and burn” a building is not an allegation of “malicious burning,” within section 9849, C. L. 1913.

An information under section 9849, C. L. 1913, which fails to allege an intent to destroy a building, either in the language of the statute or otherwise, is insufficient to charge the crime of arson.

Where an information purporting to charge the crime of arson is defective in that it fails to allege the act to have been maliciously done and with an intent to destroy a building, the question of the sufficiency of the information may be raised upon a motion in arrest of judgment. Section 10745, C. L. 1913.

Where an information, purporting to charge arson, fails to allege malice and an intent to destroy a building, it does not state a public offense.

A motion in arrest of judgment is sufficient to arrest judgment on an information that does not state a public offense.

Appeal from District Court, Sheridan County; Fred Jansonius, Judge.

Charles E. Mutschler was convicted of third degree arson, and he appeals. Reversed, with directions.

Langer & Nuchols, of Bismarck, for appellant.

Geo. Thom, Jr., of McClusky, for the State.

LOWE, District Judge.

The defendant in this case was convicted of arson in the third degree. The material part of the information alleges:

“That at said time and place the said Charles E. Mutschler did willfully, unlawfully, and feloniously set fire to and burn, in the nighttime, a certain dwelling house situated in the village of Goodrich in the county of Sheridan and state of North Dakota, said dwelling house being then and there the property of said Charles E. Mutschler, this against the peace and dignity of the state of North Dakota, and contrary to the form of the statute in such case made and provided.”

The defendant pleaded not guilty, and went to trial, and was found guilty of arson in the third degree. When the defendant was called for sentence, his counsel made a motion in arrest of judgment, on the ground that the information did not state facts sufficient to constitute a public offense, which motion was denied.

It appears the information was drawn under sections 9849 and 9865 of the Compiled Laws of 1913, reading as follows:

“Sec. 9849. Arson is the willful and malicious burning of a building, with intent to destroy it.”

“Sec. 9865. Maliciously burning in the nighttime any building, not the subject of arson in the first or second degree, * * * is arson in the third degree.”

Numerous errors are assigned by counsel for defendant, but they appear to be without sufficient merit to require discussion, with the exception of the assignment that the court erred in denying the motion in arrest of judgment. There having been no proper demurrer filed, the information must be construed liberally. This brings us to the question whether the information, when liberally construed, charges a public offense upon which the defendant could be legally convicted.

[1][2] 1, 2. At common law malice was an essential ingredient in the crime of arson, and has been incorporated into most statutes on the subject. It seems to be the rule, without exception, that-

“Malice is of the essence of the crime of arson at common law, and the same ingredient must enter into offenses of house burning created by statute.” Jesse v. State, 28 Miss. 100.

This is especially true where the statute defines the offense as the malicious burning. It has even been held that malice, being an ingredient in common-law arson, is such even in arson under a statute which does not contain the term or its equivalent. 3 Bish. New Crim. Proc. (2d Ed.) 1245. In an indictment under the statute of 9 Geo. 1, it was necessary to aver that the burning was malicious, although the statute did not contain these words: “For malice is the essence of the offense.” 2 East, P. C. 1033.

“All the ingredients which enter into the offense, whether set down in the statute or interpreted into it, must be stated. For this the exact words of the statute will, with rare exceptions, be practically best, because thus all doubt will be avoided, and simply the proof demanded by the law, and no more, will be called for by the indictment.” 2 Bish. New Crim. Proc. (2d Ed.) p. 478.

“The felony of arson, or willful burning of houses, is described by my Lord Coke, c. 15, p. 66, to be the malicious and voluntary burning of the house of another, by night or by day. * * * It must be a willful and malicious burning, otherwise it is not felony, but only a trespass.” 1 Hale, P. C. 566.

See, also, 4 Blackstone's Com. 220; 2 Russell on Crimes, 548; and 2 East's Crown Law, 1015. Kellenbeck v. State, 10 Md. 431, 69 Am. Dec. 166.

It is well settled that the words “willfully, unlawfully, and feloniously” do not include or charge malice. See 2 R. C. L. p. 509, 5 C. J. p. 541.

In Kellenbeck v. State, 10 Md. 431, 69 Am. Dec. 166, the crime of arson was charged as having been “feloniously, willfully, and unlawfully” done, and the court said:

“The indictment is defective, viewing it as charging the crime of arson. The burning is nowhere alleged to have been done ‘maliciously,’ but ‘feloniously, willfully, and unlawfully.”’

[3] It is quite plain that the information in this case by the omission of malice does not charge a public offense.

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