Summary
In State v. Ingram, 166 Miss. 543, 146 So. 638, where there was an indictment under the Code sections in force prior to the enactment of chapter 272, Laws of 1932, it was held that the words in the indictment that the burning was willfully, unlawfully, and feloniously committed were sufficient to define the offense, and it seems there was a like holding in the case of Banks v. State, 93 Miss. 700, 47 So. 437.
Summary of this case from Reed v. StateOpinion
No. 30595.
March 13, 1933.
ARSON. Indictment charging burning of building with intent to injure insurance company sufficiently alleged ownership of house and that defendant knew of insurance ( Code 1930, section 785).
Indictment charged, in substance, that defendant on date stated did willfully, unlawfully, and feloniously set fire to and burn dwelling house of person named, said building being at time insured against damage and loss by fire under contract of insurance issued by insurance company named, with intent then and there to prejudice and injure said insurer.
APPEAL from Circuit Court of Grenada County.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The statute under which this indictment was drawn appears as section 785 of the Mississippi Code of 1930.
The allegation of the indictment follows the literal wording of the statute and is sufficient to show a contract of insurance then and there existing and the matter of whether or not this contract of insurance was known to the accused is a matter of proof.
It is true that common law arson required the element of malice to be embodied in the indictment, but the crime with which the accused stands charged was not a common law crime, but one created and established by statute. An indictment describing the act as having been done "wilfully, unlawfully and feloniously" was sufficient to show the crime of arson under a statute providing against a "wilful burning."
Banks v. State, 93 Miss. 700.
The statute under which the indictment in the case at bar was drawn provides that the burning must have been "wilfully" done, and, therefore the allegation in the present indictment, to the effect that the burning was done wilfully, unlawfully and feloniously, is sufficient under the statute without requiring the element of malice to be set out in so many words.
The form of alleging ownership is not essential and the house named may be described as "belonging to," "the property of," "owned by," or "in possession of," or simply "of" a person named.
1 McClain, Cr. Law, 518.
W.I. Stone, of Coffeeville, and Sam C. Mims, Jr., and Ben Wilkes, both of Grenada, for appellee.
The gravamen of this charge is the intent to prejudice and injure the insurance company, and here we see that he does not even remotely suggest in the charging part of his indictment that the defendant knew that the Hartford or any other insurance company had a policy or contract. The indictment must not by argument or inference or suggestion but in its plain terms charge knowledge on the part of the defendant of the fact that the witness was a witness in court, or that the house was insured, or that the juror was a juror on duty, or that in case of violating an injunction that the injunction did exist, or whatever else was necessary first of all to show knowledge on the part of the defendant before you could properly charge him with a specific intent to use that knowledge against the law.
Salla v. U.S., 104 Fed. 545, 44 C.C.A. 26, Ninth Circuit (1900), Idaho; U.S. v. Carll, 105 U.S. 611, 26 L.Ed. 1135; Pettibone v. U.S., 148 U.S. 197, 13 Sup. Ct. 542, 37 L.Ed. 419; Genna v. U.S., 293 Fed. 387; Howards case, 34 L.R.A. 181, 61 A.S.R. 407; State v. Dowman, 30 Am. Dec. 474.
In an indictment upon a statute, it is not sufficient to set forth the offense in the words of the statute, unless those words of themselves fully, directly and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished; and the fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the Legislature does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent.
U.S. v. Cruikshank, 92 U.S. 542 (XXIII, 588); U.S. v. Simmons, 96 U.S. 360 (XXIV, 819); Com. v. Clifford, 8 Cush. 215; Com. v. Bean, 11 Cush. 414; Com. v. Bean, 14 Gray 52; Com. v. Filburn, 119 Mass. 297; U.S. v. Cruikshank, 23 L.Ed. 588; U.S. v. Cook, 21 L.Ed. 528.
Also on this proposition of rebutting the claim that the words of the statute are sufficient in many cases are sufficient in all cases, and showing that the words of the statute are insufficient in very many cases, see State v. Bardwell, 72 Miss. 535, 18 So. 377, citing the case of Jesse in 28 Miss.; Harrington's case, 54 Miss. 490; Sullivan's case, 67 Miss. 346, 7 So. 275; Rawles' case, 70 Miss. 739, 12 So. 584; Maxwell case, 68 Miss. 339, 8 So. 546; Stark's case, 81 Miss. 398, 33 So. 175; State v. Greer, Anno. Cases 1913C 1163, 2 R.C.L. 22, page 520, 243 Mo. 599, 147 S.W. 968.
In very many cases the words of the statute are not sufficient but the full measure of the offense must be charged by the use of such words as are necessary and proper to establish rules of law to characterize it.
Taylor v. State, 74 Miss. 548, 21 So. 129; Harrington case, 54 Miss. 494; Hays' case, 57 Miss. 786; Finch v. State, 64 Miss. 461-462, 1 So. 630; Norton v. State, 72 Miss. 131, 16 So. 264, 18 So. 916, 48 A.S.R. 538; Richburger v. State, 90 Miss. 830, 44 So. 774.
The gravamen of this offense is not the burning of the house but is the felonious intent to defraud the insurance company.
Argued orally by W.I. Stone, for appellee, and W.D. Conn, Jr., for the state.
A demurrer was sustained to an indictment, which, omitting the formal, opening recitals, reads as follows: "That J.J. Ingram in said county, on the 10th day of February, A.D. 1932, did then and there wilfully, unlawfully and feloniously set fire to and burn a building to-wit: A dwelling house of Mrs. Bessie Carter Ingram, the said building being at the time insured against damages and loss by fire under a contract of insurance issued by the Hartford Fire Insurance Company, a foreign corporation, with intent then and there to prejudice and injure the said insurer, the Hartford Fire Insurance Company, a foreign corporation contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Mississippi."
The indictment was evidently drawn under section 785, Code 1930, which reads as follows: "Every person who shall wilfully set fire to or burn any building or vessel, or any goods, wares, or merchandise, or chattels of any kind, which shall at the time be insured against damages or loss by fire, with intent to prejudice or injure the insurer, whether the same be the property of the offender or of any other person, shall, upon conviction thereof, be imprisoned in the penitentiary not less than seven years nor more than ten years."
The state, contending that the indictment contains every essential averment, has appealed. The two main grounds of demurrer are: First, that there is no allegation of ownership of the dwelling house; and, second, that there is no allegation that the defendant knew that the property was insured.
There was a day in the long ago when undoubtedly the demurrer would have been sustained by this appellate court to the quoted indictment, and there are yet a few jurisdictions wherein the same result would follow even today. But unessential technicalities as against indictments are fast losing ground. We think the normal and intelligent mind would naturally obtain the sense from the allegation that "a dwelling house of Mrs. Bessie Carter Ingram" meant a house owned by the party named; and, as to the knowledge of the defendant that the house was insured, we think the allegation that the burning was done with the intent to prejudice the insurer, the Hartford Fire Insurance Company, carries sufficiently the meaning that the defendant knew of the insurance and the company with which insured, else he could not have had an intention specifically charged against him to prejudice the particular insurer named. We have passed on in the progress of the times, and we now look upon most of the old decisions which maintained and required the observance of such technical strictness, only with a curious interest; as, for instance, when in an indictment for murder with a deadly weapon it was necessary to allege in which hand the defendant held the weapon.
Reversed and remanded.