State v. Sarvis

Citation24 S.E. 53,45 S.C. 668
PartiesSTATE v. SARVIS.
Decision Date06 March 1896
CourtSouth Carolina Supreme Court

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 said 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 appeared, 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 of arson, by the common law, in burning such dwelling house; and the rule is not changed by a statute securing to the wife the separate property." From these authorities, as well as others that might be cited, it is very obvious that the gist of the common-law offense of arson is the injury of the habitation, and not of the property constituting the habitation; and, if a person voluntarily chooses to destroy his own habitation, either by fire or otherwise, he does no such unlawful act as would constitute arson. Indeed, if the building burned is his own property, I do not see that, in any sense, his act can be regarded as unlawful, inasmuch as a person may do with his own as he pleases, provided, in so doing, he does not injure the property of his neighbor. If, however, a person sets fire to his own dwelling house, with intent to burn the dwelling house of his neighbor, and the house of his neighbor takes fire and is burned, it is quite possible that he may be convicted of arson. But, as there is no such allegation in this indictment, it is unnecessary to consider further such an hypothesis. But if a person sets fire to his own dwelling house with an intent simply to injure or destroy his neighbor's property,--not his habitation,--he certainly could not be convicted of arson, although he might be responsible for the damages done to his neighbor's property.

It is contended, however, that the common law in respect to arson has been changed by statute, and now a person may be indicted for arson in willfully and maliciously burning his own dwelling house. The statute relied on for this purpose is incorporated in section 140 of the Criminal Statutes (2 Rev St. p. 311), which reads as follows: "The willful and malicious setting fire to or burning any house, of whatever name or kind, within the curtilage or common inclosure of any house or room wherein persons habitually sleep, whereby any such dwelling house or sleeping apartment shall be...

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