State v. Whitmore

• Decision Date: 21 November 1898
• Parties: STATE v. WHITMORE.
• Court: Missouri Supreme Court

47 S.W. 1068

147 Mo. 78

STATE v. WHITMORE.

Supreme Court of Missouri, Division No. 2.

November 21, 1898.

ARSON — INDICTMENT — SUFFICIENCY.

1. Under Rev. St. 1889, § 3511, providing that the burning of "any dwelling in which there shall be at the time some human being" is arson in the first degree, and section 3512, providing that "every house, prison, jail," etc., shall be deemed a dwelling house, an indictment for arson in the first degree, charging defendant with burning a jail, which fails to allege that it is a dwelling house, is fatally defective.

2. Under Rev. St. 1889, § 3512, providing that a jail which is occupied shall be deemed a dwelling house of any person having charge thereof, or so lodged therein, within the meaning of the statute defining arson, an indictment for burning a jail must allege its ownership.

3. When it was in charge of the sheriff, who resided in the upper story of it, such ownership should be laid in him.

4. Where defendant was convicted of arson in the first degree, and the indictment proves defective, the state cannot treat matters of description, which are necessary only under the statute defining arson in the first degree, as immaterial and surplusage, and thus bring it within the provisions of the statute defining arson in the third degree.

Appeal from circuit court, Grundy county; P. C. Stepp, Judge.

Eugene J. Whitmore was convicted of arson in the first degree, and appeals. Reversed.

Harber & Knight, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

SHERWOOD, J.

Arson the charge, 10 years' imprisonment in the penitentiary the punishment, and the indictment as follows: "The grand jurors for the state of Missouri, and from the body of Grundy county, duly impaneled, charged, and sworn, upon their oaths present and charge that on the _____ day of ______, 1897, at Grundy county, Missouri, one Eugene Whitmore, being then and there a prisoner confined in the county jail of Grundy county, Missouri, then and there situate, the said county jail being then and there the prison of the said Grundy county, Missouri, wherein the prisoners convicted of misdemeanors were then and there usually confined and lodged, and wherein also certain human beings, officers, servants, and employés of said county, in charge of and employed in said county jail, then and there did usually lodge, he, the said Eugene Whitmore, did then and there feloniously, willfully, and maliciously set fire to the county jail aforesaid, and the said county jail then and there willfully, feloniously, and maliciously did burn, in which said county jail were then and there divers human beings, who usually lodged therein, against the peace and dignity of the state. John W. Schooler, Prosecuting Attorney for Grundy County, Missouri." The sufficiency of this indictment having been challenged, it is in order to determine that point.

Sections 3511, 3512, Rev. St. 1889, relating to the crime of arson, are these:

"Sec. 3511. Arson First Degree. Every person who shall willfully set fire to or burn any dwelling house in which there shall be at the time some human being, or who shall willfully set fire to or burn any boat or vessel in which there shall be at the time some human being, or who shall willfully set fire to or burn any bridge or causeway upon any railroad, shall upon conviction be adjudged guilty of arson in the first degree.

"Sec. 3512. Dwelling House Defined. Every house, prison, jail or other edifice, which shall have been usually occupied by persons lodging therein, shall be deemed a dwelling house of any person having charge thereof or so lodged therein; but no warehouse, barn, shed or other out-house shall be deemed a dwelling house, or part of a dwelling house, within the meaning of this or the last section, unless the same be joined to or immediately connected with and is part of a dwelling house."

Section 3515 of the same article is the following:

"Every person who shall willfully set fire to or burn any house, building, barn, stable, boat or vessel of another, or any office or depot or railroad car of any railroad company, or any house of public worship, college, academy or school-house, 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...