Thomas v. State
| Decision Date | 01 January 1874 |
| Citation | 41 Tex. 27 |
| Parties | JOE THOMAS v. THE STATE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Galveston. Tried below before the Hon. Samuel Dodge.
The opinion states the case.
Garnett & Garnett, for appellant.
It will not be questioned that, to constitute the crime of arson, the fire must have been applied with the design to burn the building. (See Pas. Dig., art. 2315.) The willful and malicious design to burn the house must be distinctly charged in the indictment.
It is the setting fire to a building with design to burn it down that constitutes the arson. In criminal pleading, the offense should be charged in words in their primary meaning. The word willful, in its primary sense, does not mean design or intention.
In this indictment it is nowhere alleged that Joe Thomas set fire to the building with the design or intent to burn the same. And it is submitted that the motion in arrest of judgment should have been sustained.
George Clark, Attorney General, for the State.
The defendant was indicted and convicted for willfully burning a church. (Pas. Dig., art. 2309.)
The indictment charged that the defendant a certain church located and described therein “unlawfully, willfully, feloniously, and maliciously did set fire to, and the said house then and there, by such firing as aforesaid, unlawfully, willfully, feloniously, and maliciously did burn.”
It is objected to this indictment, on a motion in arrest of judgment, that “the indictment nowhere charges that said defendant, with design or intent to burn said church-house, set fire to and burned the same.” The objection was overruled, and, as we think, correctly.
Our statute prescribes that “arson is the willful burning of any house included within the meaning of the succeeding articles of this chapter.” (Pas. Dig., art. 2309.) A church is one of the houses specified in the chapter. (Art. 2313.)
The indictment charges the intent as prescribed in the definition of the offense, which certainly is sufficient. But it goes further, if it were necessary, and charges the act to have been done maliciously, which fully embraces the idea of an unlawful, evil design in doing the act.
In a case where the house was set fire to, but not consumed, as in the case of a prisoner in jail, a question might arise as to whether the act was done with the intent to escape by a partial burning, and not to burn up the house, or if, as contemplated in art. 2315, the fire is not set directly to the house, but to something which may cause it to reach the house, then the design with which the fire was set becomes an important fact of inquiry. In such a case the burning might be willful to the extent designed without its being a “willful burning” of the...
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Arnold v. State
...under the very statute itself. Baker v. State, 25 Tex. App. 1, 8 S. W. 23, 8 Am. St. Rep. 427; Tuller v. State, 8 Tex. App. 501; Thomas v. State, 41 Tex. 27. Appellant contends that, before the state could secure his conviction, it was necessary for the state to prove that appellant had a v......
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Huggins v. State, 52303
...(7th ed.), Sec. 1830; 4 Branch's Ann.P.C. (2d ed.) 738, Sec. 2395. Orato v. State, 170 Tex.Cr. 514, 342 S.W.2d 108 (1960); Thomas v. State, 41 Tex. 27 (1874). 'The essential element of the crime of arson is the willful burning of the building, without which that crime has not been committed......
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