State v. Shaw

• Decision Date: 12 January 1909
• Docket Number: 16,125
• Citation: 100 P. 78,79 Kan. 396
• Parties: THE STATE OF KANSAS v. HIRAM M. SHAW
• Court: Kansas Supreme Court

100 P. 78

79 Kan. 396

THE STATE OF KANSAS v. HIRAM M. SHAW

No. 16,125

Supreme Court of Kansas

January 12, 1909

Decided January, 1909.

Error from Trego district court; JACOB C. RUPPENTHAL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Arson--Ownership--Property "of Another." Under the laws of this state the legal identity of husband and wife does not prevent a husband who burns his wife's house from being guilty of arson.

2. CRIMINAL LAW--Instructions--Intent. Where, on the trial of a criminal charge, the court presents in its instructions to the jury the principal questions involved the defendant can not predicate error upon an omission to give a special instruction which was not requested.

3. CRIMINAL LAW--New Trial--Misconduct of Jury. It is not error to refuse an application for a new trial unless such refusal is in some way prejudicial to the substantial rights of the applicant.

Fred S. Jackson, attorney-general, Herman Long, county attorney, and John Marshall, for The State.

John A. Nelson, Lee Monroe, and George A. Kline, for appellant.

OPINION

GRAVES, J.:

The appellant was convicted of arson in the third degree, on March 20, 1908, in the district court of Trego county, and has brought the case here on appeal. There are several assignments of error, but they may all be considered as one.

The appellant relies upon the proposition that the crime of arson is not established by the evidence, but, on the contrary, claims that a state of facts is shown from which it appears that such offense could not have been committed by him. The evidence shows that the appellant and Cora J. Shaw, the alleged owner of the property burned, were husband and wife at the time the crime charged was committed. It is argued that a husband can not be guilty of arson by burning the house of his wife, and that this arises from the legal identity of husband and wife. At common law the crime of arson was defined to be the wilful and malicious burning of the dwelling-house of another. (Harris's Crim. Law, p. 225.)

The crime charged against the appellant, and of which he was convicted, is defined by section 55 of the crimes act, being section 2046 of the General Statutes of 1901, which reads:

"Every person who shall wilfully set fire to or burn, in the night-time, any house, building, barn, stable, boat or vessel of another, or any house of public worship, college, academy or schoolhouse, or building used as such, or any public building belonging to the United States or this state, or to any county, city, town or village, not the subject of arson in the first or second degree, shall on conviction be adjudged guilty of arson in the third degree."

It is insisted that the words "of another," as used in the statute, should be held to have the same signification that has been given to them as used in the common-law definition of the crime of arson. Numerous authorities are cited to support the view that as husband and wife are one they can not be properly separated from each other by designating either as "another," and, therefore, that word can not be applied to either husband or wife where one burns the house of the other. Many cases hold to this view, but we do not think it can be made to harmonize with the long-established policies of this state, as shown by its laws and the former decisions of this court. In the first place there are no common-law offenses in this state; they are all statutory. (The State v. Young, 55 Kan. 349, 40 P. 659.) The crime of arson is fully defined by statute, and the language used indicates quite clearly that it was not intended by the enactment of this statute merely to adopt the common-law definition of that offense. The two differ materially. It is true that the words "the house of another" are used in the statute, but the reason given for holding that the wife is not "another" as distinguished from the husband has very little force in this state. The common-law idea that "husband and wife are one, and that one the husband," was extinguished in this state when the constitution was adopted. Section 6 of article 15 of the constitution reads:

"The legislature shall provide for the protection of the rights of women, in acquiring and possessing property, real, personal and mixed, separate and apart from the husband; and shall also provide for their equal rights in the possession of their children."

Section 9 of the same article prohibits the alienation of the homestead "without the joint consent of husband and wife."

The policy of permitting husband and wife to own property and transact business independent of each other has been expanded by legislation until the property rights of married people are as separate and distinct from each other as if they were unmarried. They transact business with each other as freely as with other people. Among the many decisions of this court upholding this policy, the following may be cited: Going v. Orns, 8 Kan. 85; Monroe v. May, Weil &amp Co. 9 Kan. 466; McCarty, Adm'r, v. Quimby, 12 Kan. 494; Parker v. Bates, 29 Kan. 597; Chapman v. Summerfield, 36 Kan. 610, 14 P. 235; Shinn v. Shinn, 42 Kan. 1, 8, 21 P. 813, 4 L. R. A. 224...