State v. Sarvis

• Citation: 24 S.E. 53,45 S.C. 668
• Parties: STATE. v. SARVIS.
• Decision Date: 06 March 1896
• Court: United States State Supreme Court of South Carolina

24 S.E. 53
45 S.C. 668

STATE.
v.
SARVIS.

Supreme Court of South Carolina.

March 6, 1896.

Arson— What Constitutes—Burning One's Own House—Intent to Defraud Insurance Company.

1. 2 Rev. St. p. 311, providing that the willful and malicious burning of any house within the curtilage, or the burning of any public building, stable, house used for manufacturing purposes, etc., shall be arson, merely enlarges the character of the houses which could be the subject of arson, and does not change the common-law rule that one cannot be convicted of arson for burning his own house, of which he has possession.

2. In the absence of statute, a person cannot be convicted of arson for burning his own house, of which he has possession, though done with intent to defraud an insurance company.

3. That the owner of a house procured another to burn it does not render him guilty of arson.

Appeal from common pleas circuit court of Horry county; Ernest Gary, Judge.

John D. Sarvis was indicted for arson. A motion to quash indictment was granted as to one count and denied as to the other, and both parties appeal. Reversed on defendant's appeal, and affirmed on state's appeal.

J. M. Johnson, for the State.

W. D. & J. W. Johnson and C. P. Quattlebaum, for defendant.

McIVER, C. J. The indictment in this case contained two counts, the first charging that the defendant "did feloniously, willfully, and maliciously set fire to, and cause fire to be set to, a certain house, to wit, a dwelling house, there situate, of one John D. Sarvis, in which the Farmers' Mutual Fire Insurance Association then and there had an interest, to wit, a policy of insurance, and by the kindling of such fire the aforesaid dwelling house was then and there feloniously, willfully, and maliciously burned and consumed, against the form of the statute in such case made and provided, and against the peace and dignity of the state." The second count of the indictment charged that the said John D. Sarvis, "With intent to defraud the Farmers' Mutual Fire Insurance Association, a corporation under the laws of said state, which then has [had?] issued a policy of insurance on the dwelling house hereinafter named, did feloniously, willfully, and maliciously counsel, hire, procure, and command one Alva Sarvis to feloniously, willfully, and maliciously set fire to a certain dwelling house of the said John D. Sarvis, there situate, and by the kindling of said fire aforesaid, so set as aforesaid by the said Alva Sarvis, upon the hiring, commanding, and procurement of the 3aid John D. Sarvis, as aforesaid, the aforesaid dwelling house was then and there feloniously, willfully, and maliciously burned and consumed; the said policy of insurance being then and there of force, outstanding, in favor of the said John D. Sarvis, for a large sum of money, to wit, for the sum of five hundred and fifty dollars; and so the jurors aforesaid, on their oath aforesaid, do say that the said John D. Sarvis then and there, in the manner and by the means aforesaid, feloniously, willfully, and maliciously did commit the crime of arson, against the form of the statute in such case made and provided, and against the peace and dignity of the state." A motion was made before his honor, Judge Ernest Gary, to quash the indictment, when his honor ruled that the motion must be granted as to the first count in the indictment, but must be refused as to the second count. From this ruling both parties have appealed, the state alleging error in holding the first count bad, and the defendant alleging error in holding the second count good.

I propose, first, to consider the appeal on behalf of the state, which raises the question as to the validity of the first count in the indictment, in which the defendant is charged with arson in "feloniously, willfully, and maliciously" burning his own dwelling house. There can be no doubt that a person cannot be convicted, at common law, of the crime of arson in burning his own dwelling house, and this I understand to be conceded; for the definition of that offense, as given in 2 Bish. Cr. Law, § 8, is "the malicious burning of another's house, " and this is sustained by citations in the notes from standard authorities. And, as is said by the same author, in section 12: "Arson is an offense against the security of the habitation, rather than the property. When, therefore, we say that the house burned must be another's to occupy, consequently, at common law, a man cannot commit arson of his own house, even when it is insured, "—citing Rex v. Spalding, 1 Leach, 218, 2 East, P. C. 1025, and Rex v. Proberts, 2 East, P. C. 1030, with other cases, to which may be added Breeme's Case, Id. 1026, and Isaac's Case, Id. 1031. See, also, Snyder v. People, 26 Mich. 106, where Judge Cooley used this language: "Arson is an offense against the habitation, and regards the possession rather than the property. The house, therefore, must not be described as the house of the owner of the fee, if, in fact, at the time, another has the actual occupancy; but it must be described as the dwelling house of him whose dwelling it then is." In that case the indictment charged the defendant with burning the dwelling house of Mary A. Snyder, who was, at the time, the wife of the defendant; and the syllabus of the case, which is fully sustained by the opinion of the court, reads as follows: "A husband living with his wife, and having a rightful possession, jointly with her, of a dwelling house which she owns and they both occupy, is not guilty...