State v. Young
| Decision Date | 23 April 1900 |
| Citation | 82 N.W. 420,9 N.D. 165 |
| Parties | STATE v. HARRY SMITH YOUNG |
| Court | North Dakota Supreme Court |
Appeal from District Court, Dickey County; Lauder, J.
Harry Smith Young was convicted of arson, and appeals.
Reversed.
George W. Parks and E. P. Perry, for appellant.
The prosecution can never in a criminal case properly claim a conviction upon evidence which expressly or by implication shows but a part of the res gestae or whole transaction, if it appear that the evidence of the rest of the transaction is attainable. Hurd v. Peo., 25 Mich. 405; Weller v. Peo., 30 Mich. 612; Peo. v. Wolcott, 51 Mich. 23. If the facts are consistent with innocence they are not proof of guilt. Ormsby v. Peo., 53 N.Y. 137; Frazier v. Peo., 54 Barb. 309; Peo. v Stokes, 2 N.Y. Cr. Rep. 382; Com. v. Holmes, 127 Mass. 424. Conduct being susceptible of two opposite explanations we are bound to assume it to be moral, rather than immoral. Port v. Port, 70 Ill. 484; Mason v. State, 32 Ark. 239; Greenwood v. Lowe, 7 La.Ann. 197. The following instruction was erroneous Hoffman v. State, 73 N.W. 51; 1 Stark. Ev. 502; State v. Cohen, 78 N.W 857; State v. Furney, 21 P. 216; Marion v. State, 20 N.W. 294; Graves v. Peo., 32 P. 66; Leonard v. Ter., 8 P. 878; Clair v. Peo., 10 P. 799; Com. v. Webster, 5 Cush. 295; Peo. v. Phipps, 39 Cal. 333; Crow v. State, 26 S.W. 209; Peo. v. Aiken, 33 N.W. 821; Kallock v. State, 60 N.W. 817; 3 Rice, Ev. 347; Clare v. Peo., 9 Colo. 123; Peo. v. Aiken, 66 Mich. 481. The verdict of the jury was a nullity, the information does not charge arson in the third degree. In re McVey, 70 N.W. 51.
E. E. Cassels, State's Attorney, for the State.
At common law the defendant was not permitted to give testimony in his own behalf, hence the prosecution was required to swear all witnesses of the occurrence. The common law disability being removed, the reason for the rule is gone. State v. McGahey, 3 N.D. 293. The instruction challenged finds support in the cases. 2 Thomp. Tr. 1868, § 2514; Sackett, Inst. 647; Bressler v. Peo., 117 Ill. 422, 3 N.E. 522; Hauser v. State, 58 Ga. 78; Jewell v. State, 58 Ind. 293; State v. Hayden, 45 Ia. 11. Where there is some direct evidence of the defendant's guilt, the court is not in duty bound to charge the jury on the law concerning circumstantial evidence. Solander v. Peo., 2 Colo. 48; Barnard v. State, 12 S.W. 431; Hayes v. State, 17 S.W. 940; Woodruff v. State, 12 South. Rep. 653; 2 Thomp. Tr. § 2514. An instruction to the effect that it is not necessary in order to convict that every fact should be proven beyond a reasonable doubt if on the whole of the facts there is no reasonable doubt of guilt is proper. Weaver v. Peo., 24 N.E. 571; Stebert v. Peo., 32 N.E. 421; Jameson v. Peo., 34 N.E. 486; Carlton v. Peo., 37 N.E. 244. The doctrine of reasonable doubt as a rule is not properly applicable to the whole mass of circumstantial evidence taken item by item, but is properly applicable to the constituted elements of the crime charged. Wade v. State, 71 Ind. 535; Davidson v. State, 34 N.E. 971; Gallagher v. State, 12 S.W. 1087.
The defendant was informed against, tried, convicted, and sentenced for the crime of arson. A motion for a new trial was denied, and an appeal taken from the judgment. The first attack is made upon the information. The crime is designated in the information as arson. The charging part of the information sets forth facts constituting arson in the third degree as defined by our statute, and the court instructed the jury that the accused stood charged with arson in the third degree. The attack, which was made both by motion and demurrer in the court below, proceeds upon the theory that the offense is not specified in the information, and that arson and arson in the third degree are two distinct offenses. As our statute requires the offense charged to be specified and certain, it is urged that the pleader cannot name the offense, and then state facts constituting an entirely different offense. But we think this information cannot be so construed. Section 7382, Rev. Codes, defines arson as follows: "Arson is the willful and malicious burning of a building with intent to destroy it." The definition is very broad. Following on down to sections 7393 to 7400, inclusive, we find arson divided into four degrees with a different punishment for each; but each degree comes clearly within the general definition of arson. They are only different degrees of the same crime, differing from different degrees of the same crime in other offenses in this: that the lower degree is not necessarily or generally included in the higher. By reason of this difference it must be true that under a charge of arson alleging facts showing arson in the first degree (the burning of a dwelling house) it would not be competent to prove the burning of a building constituting a lower degree of arson (for instance, a flouring mill, as in this case). The variance would be fatal. But, since each degree constitutes arson, the accused can be in no manner misled or prejudiced by an information that charges arson, followed by an allegation of facts constituting arson in any of the specified degrees. No other facts could be proven, and no conviction could be had for any other degree. The only case cited by appellant that tends to support his position is State v. Atkinson, 88 Wis. 1, 58 N.W. 1034, and that case cannot be considered an authority here, both because the point involved was different, and because of the radical difference in the statutes of the two states. In Wisconsin no burning is specifically designated as arson. The burning of a dwelling house in the night time is punished by specific punishment. The burning of the same in the day time is punished by a lighter punishment. Other sections cover the burning of other named buildings in the night time or day time. Then follows another section, which the court designates as a "catchall" to cover all cases not previously covered, which prescribes a punishment for burning any building at any time. Under an indictment under the last section it was sought to convict of burning a dwelling house. The Supreme Court refused to sustain the conviction, on the ground that the two offenses were distinct and separate, and not different degrees of the same offense. But our statute in terms declares different degrees of the offense of arson. The degrees are distinct, and no conviction of one degree could ordinarily be had under an allegation of facts constituting another degree. The same result would be reached here as in Wisconsin, but here any degree is properly designated as arson. McClain, Cr. Law, § 525, and cases cited in notes. We hold the information sufficient, but a new trial must be ordered by reason of an error in the instructions. Many errors are assigned in giving and refusing instructions. Aside from the one hereafter discussed, these assignments should all be overruled, as the charge fully covered the law of the case, was clear, and as favorable to the defendant as the rules of law would justify. The court instructed the jury as follows: This instruction was taken almost verbatim from Sack. Instruct. Juries, 647. It has been given in several cases, and has been the subject of considerable discussion, and we believe it is now universally...
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