State v. Nolan

• Citation: 48 Kan. 723,29 P. 568
• Parties: THE STATE OF KANSAS v. GEORGE NOLAN
• Decision Date: 05 March 1892
• Court: United States State Supreme Court of Kansas

29 P. 568

48 Kan. 723

THE STATE OF KANSAS v. GEORGE NOLAN

Supreme Court of Kansas

March 5, 1892

Appeal from Atchison District Court.

PROSECUTION for arson in the first degree. From a conviction, at the April term, 1891, the defendant, Nolan, appeals. The opinion states the facts.^[*]

Judgment reversed.

W. P Waggener, for appellant.

W. T Bland, county attorney, for The State.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On the night of Sunday, the 7th day of December, 1890, the dwelling-house of Edward Farris, a colored man, in Walnut township, in Atchison county, in this state, was burned. The size of the house was 12 by 16 feet. It was built of box lumber. The floor was pine. The ceiling was plastered. The house had one room only, with two windows. The east window was located near the center of the east end, and the west window was near the southwest corner. The door of the house was on the south side, nine feet from the edge of the door to the corner. The roof ran up to an angle of a five-foot pitch. At the time the fire commenced, there were in the house two children of Edward Farris, Maud, two years of age, and Ethel, four months of age. There was a stove in the house at the west end, two feet from the wall. There was a stove-pipe running from the stove up through a hole in the ceiling of the house. The pipe was a six-inch one. There was a place two feet square for the pipe to run through the ceiling, and at the top of the roof the square was 10 inches. The pipe at the roof had sheet-iron around it, and this was nailed to the roof. A little after 6 o'clock P. M., on the 7th of December, 1890, Edward Farris, with his wife and a friend, left his house and went down to Mr. Potter's, a neighbor who lived a quarter of a mile away. He left his little children in the house at the time, Maud being on the bed in the northeast corner of the house, and Ethel, the baby, in a cradle or box, (it had been a trunk, but it was used to lay the baby in, and was 12 inches high.) When Farris left the house, the cradle was against the south wall, and there was a little fire only in the stove. Farris testified: "You could not tell there was any fire in the stove, unless you raked among the ashes." After Farris had been at Potter's about 30 minutes, he saw a light in the direction of his house. He started for his house as fast as he could, and found it "burning very lively." He tried to get in at the door, but he could not on account of the fire. The wind was in the northwest, blowing around the south side of the house. He then went to the east window, and after knocking the window in, got inside, and tried to get the little baby, but could not, because the southwest corner of the house fell on the child, which was burned up. He succeeded in getting his other child, Maud, out of the bed. When Farris first reached the house the flames were going up about the eaves, and the west end of the house was on fire, and it was also burning around the door on the south side. He did not see any fire on the roof when he first got to the house, nor any fire around the stove, or stove-pipe. For light Farris used a lamp and coal oil, but on the night of the fire he did not light the lamp and no light was burning in the house when he left it. George Nolan, also a colored man, lived about three-quarters of a mile from Edward Farris's. About a month before the house was burned there had been a quarrel between Farris and Nolan.

Nolan was charged with arson in the first degree for setting fire to and burning the house. He was convicted "of arson, as charged," and was sentenced to the penitentiary of the state at hard labor for a period of 10 years. He appeals to this court. Pearson Potter, a witness examined on behalf of the state, testified as follows:

"Ques. When you got to the house did you notice how the fire had started? Ans. Yes, sir.

"Q. Did it appear to have been started accidentally, or was it set on fire? A. Well, I think it was set on fire by some one."

Of course, the opinion or belief of this witness about the house having been set on fire should not have been received by the court, and upon the request of the defendant it should have been taken away from the jury. Such evidence is wholly incompetent. (Tefft v. Wilcox, 6 Kan. 46; Monroe v. Lattin, 25 id. 351; Railroad Co. v. Peavey, 29 id. 170.)

The defendant, George Nolan, is a poor colored man, almost without friends, except his attorneys, who have prosecuted this appeal in his interest as a matter of charity. In the opinion as originally filed we stated that it was incompetent for Pearson Potter, a witness for the prosecution, to testify against the defendant that "I think the house was set on fire by some one." Upon the argument, the court's attention was almost wholly directed to the proposition that the sentence of the defendant to confinement and hard labor in the penitentiary of the state was not authorized by the statute, and was in violation of the constitution of the United States. For that reason the possible or probable influence of the incompetent testimony upon the jury did not receive sufficient consideration. We said in the opinion as first handed down that the admission of this incompetent evidence was not a material error. There was no testimony that any one saw George Nolan set the dwelling-house on fire. There were threats and certain admissions testified to; otherwise, the proof concerning the burning of the house was circumstantial only.

After a reexamination of all the testimony in the record, and especially in view of portions thereof which seem almost incredible, the members of the court are unanimously of the opinion that the ruling heretofore made must be changed. We cannot say that the error referred to was not material or prejudicial. It was decided in Gilleland v. Schuyler, 9 Kan. 569, that--

"Where testimony is erroneously received, which may have influenced the court or jury in the findings or verdict, the error cannot be considered immaterial."

Mr. Justice BREWER, speaking for the court in that case, said:

"It may be said that the testimony was immaterial, and that the error worked no substantial injury to the plaintiffs in error, because, first, there was sufficient testimony without this to support the findings, and, secondly, there was no finding that these specific fraudulent votes, or indeed that any fraudulent votes, were cast. The rule that requires this court to sustain the findings of the district court, unless clearly against the weight of evidence, avoids the first reason, for we cannot say how much this testimony influenced the court in its findings, nor determine whether without it the findings would have been as they are. If testimony is erroneously received which may have influenced the court or jury in the finding or verdict, we cannot call the error immaterial. The findings or verdict must be based upon nothing but competent testimony before any presumption in favor of their correctness will arise in this court. For, otherwise, the court or jury may, disbelieving the witnesses who give competent testimony, reach their determination mainly or wholly on the incompetent evidence, and so a party obtain a judgment he is not in fact entitled to. The record must be clean, which, when passed upon by court or jury, is sought to be sustained in this court because it has been so passed upon." (See also Railway Co. v. Pointer, 9 Kan. 620; Muscott v. Hanna, 26 id. 770.)

This is a criminal case, in which the defendant is charged with a felony. Before he could be convicted, it was necessary to establish before the jury, beyond a reasonable doubt, that the dwelling-house of Edward Farris was "set on fire." We cannot say how much the incompetent testimony influenced the jury; therefore, as it was erroneously received, and may have influenced the jury in their verdict upon an important issue of the case, we cannot call the error immaterial.

It is contended that the instructions of the court and the form of the verdict were erroneous, because, it is urged, the defendant might have been found guilty of arson in the second degree under § 51 of the act regulating crimes and punishments, or § 54 of that act, or of arson in the third degree, under § 58 of the act. We think otherwise. Arson in the night-time, under § 49 of the crimes act, does not include arson in the day-time as defined in §§ 51, 54, or 58. (The State v. Behee, 17 Kan. 402.) Again, in this case, it is clearly established that the house was burned in the night-time, and that there were in it at the time of the fire two children, one of whom -- the baby -- was burned up. If the defendant was guilty of setting fire to or burning the house of Edward Farris, as is alleged in the information, he was clearly guilty of arson in the first degree; not of arson in the second or any other degree. (The State v. Rhea, 25 Kan. 576; The State v. Hendricks, 32 id. 559; The State v. Mize, 36 id. 187.)

It is next contended that the court committed several errors in permitting the state to indorse the names of witnesses upon the information at the trial, and also in giving and refusing other instructions. We have examined these alleged errors with great care, and do not perceive any error therein, or anything to justify comment thereon.

The further contention is, that the sentence of the defendant to confinement and hard labor in the penitentiary of the state...