Opinion
No. 30220.
October 24, 1932. Suggestion of Error Overruled November 21, 1932.
1. ARSON.
Circumstantial evidence showing beyond reasonable doubt that house was burned by persons employed by defendant to burn it held sufficient to sustain arson conviction (Code 1930, section 785).
2. CRIMINAL LAW. One convicted of arson was properly sentenced under statute in effect when arson was committed, instead of under repealing statute enacted before trial prescribing lighter penalty, absent contrary provision in repealing statute ( Code 1930, sections 785, 1361; Laws 1932, chapter 272).
Sentence was properly imposed under Code 1930, section 785, in effect when arson was committed, instead of under Laws 1932, chapter 272, repealing Code 1930, section 785, and prescribing lighter penalty for arson, which repealing statute was enacted before the trial, in view of Code 1930, section 1361, providing that no statutory change shall affect punishment for any crime committed prior to its enactment, unless otherwise therein provided.
APPEAL from circuit court of Harrison county. HON.W.A. WHITE, J.
Luther Maples and R.O. Bickerstaff, both of Gulfport, for appellant.
Before the appellant can be convicted of a conspiracy to burn the said house, his co-conspirators must be produced and shown to have committed the act that was conspired to have been committed.
5 R.C.L. 160.
The rule as laid down in Ruling Case Law is to the effect that to form a conspiracy two or more persons must conspire together to commit the unlawful act, and that the commission of any act by any one of the conspirators other than the one conspired to be committed would not hold the others liable for a commission of the latter offense, and that the conspiracy to commit the offense without the actual commission of it would not be the completion of a conspiracy.
5 R.C.L. 160; People v. Morlay, 87 P. 84; People v. Trimm, 39 Calif. 77.
It is not only the established rule of law that there must be a valid existing fire insurance contract on the property destroyed by fire, but the rule goes further that the burning must be with the intention of injuring the insurer, and that there must be shown by the state, by competent evidence, that the one who committed the offense and those who conspired with him to commit the offense would have profited in some way by the burning of said property, or that they had some motive for the burning of the said property. In other words, it is incumbent upon the state to show a motive for the committing of any offense such as charged against the appellant, Byrd, and certainly there was none shown in this cause.
17 A.L.R. 1180, 2 R.C.L. 519-520.
The state failed to show and to prove the two essential elements of corpus delicti; that is to say the house in question was wilfully, maliciously and feloniously set on fire; and that the appellant either set the said house on fire or procured or acted in connection with the party or parties who actually set fire to said house, if it was set fire to by any one.
State v. Brown, 88 S.E. 21; L.R.A. 1916D 1295; People v. Lee, 204 N.W. 742.
Luther Maples, of Gulfport, for appellant.
Under the authority as laid down in the case of Osborne v. The State, 99 Miss. 422, the testimony of Murrah was not competent to show that there was a conspiracy between himself and the appellant herein to burn said house; that the state was required to prove by other competent witnesses and evidence that such a conspiracy existed before this testimony would be admissible, and it would have been necessary to show further that the conspiracy was revealed before the commission of the act.
Gillam v. State, 62 Miss. 457; Wilson v. State, 71 Miss. 880; Brown v. State, 72 Miss. 990; Foster v. State, 92 Miss. 257.
Section Six (6), page 587, the Laws of 1932, specifically repeals sections 780-781, 782, 783, 784, 785 and 786 of the Laws of 1930 and also all laws in conflict with this law.
Section 1361 of the Code of 1930 was intended for the purpose of preventing the Legislature from repealing criminal laws to prevent the punishment of those who might have sufficient influence to have such laws repealed by the legislature, but section 1362 of the Code of 1930 was intended to take care of just such a case as this one. The trial judge, after due consideration of the law involved in this case, was of the opinion that an error had been committed and for that reason admitted the appellant to bail pending his appeal. It will be further noted that in this case the court imposed the minimum penalty as provided by the old law and it is reasonable to assume that the court would have imposed a much less sentence under the facts had he been permitted to do so by the law. We submit that if there is no other error in this case that it should be reversed to the lower court with authority to sentence the appellant in accordance with the law existing at the time when the sentence was imposed, the other law having theretofore been repealed by the Legislature of 1932.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
In a case of arson it is quite well settled that the corpus delicti is (1) proof of the burning of the house, or other thing burned and (2) that the burning was caused by criminal agency.
Pitts v. State, 43 Miss. 472; Spears v. State, 92 Miss. 613, 46 So. 166, 16 L.R.A. (N.S.) 285; Whittaker v. State, 142 So. 474.
If the evidence for the state is to be believed and that is a question, of course, for the jury to decide, the facts, as detailed in the statement of same, preceding this argument, clearly demonstrated the proposition that there was a conspiracy existing between appellant and his two co-indictees, Robert A. Murrah and Will Lawrence. A conspiracy, like any other controverted fact, may be proved by the acts of parties, or by circumstances, as well as their agreement.
Street v. State, 43 Miss. 2; Osborne v. State, 99 Miss. 410; Eaton v. State, 140 So. 729.
The only other error assigned is with reference to the sentence imposed in this case. The sentence in this case was apparently under section 785 of the Code of 1930, which provided imprisonment for not less than seven years nor more than ten years. Chapter 272 of the Laws of 1932 apparently changes the sentence to be imposed in a case of this kind to not less than one year, nor more than five years, under section 5 thereof. This chapter 272, was approved by the Governor on May 16, 1932, while this conviction was had on the 23rd day of June, 1932.
Section 1361 of the Mississippi Code of 1930, provides that no statutory change of any law affecting a crime or its punishment shall effect or defeat the prosecution of any crime committed prior to its enactment, whether such prosecution be instituted before or after such enactment, unless it is otherwise specially provided in such statute. Chapter 272 of the Laws of 1932 does not specifically refer to any prosecutions, begun under the old law, so that, in my judgment, it was proper for the court to sentence appellant under section 785 of the Code of 1930.
Appellant was indicted jointly with Robert A. Murrah and Will Lawrence in the circuit court of Harrison county of the crime of arson, consisting of the burning of a dwelling house known as Sea Breeze situated in the city of Gulfport in said county, charged to have been done to defraud the Hartford Fire Insurance Company which had the property insured against loss by fire. There was a severance, and appellant was tried alone, convicted, and sentenced to the penitentiary for seven years. From that judgment appellant prosecutes this appeal.
The three principal grounds assigned and argued for the reversal of the judgment are: (1) That the evidence was insufficient to show that the house was burned through a criminal agency; (2) that, if the evidence was sufficient to show that the house was burned through a criminal agency, it was insufficient to show that appellant was the criminal agent who did, or procured, the burning; and (3) that under the law appellant could not have been sentenced to the penitentiary for more than five years — he was sentenced for the term of seven years.
We will consider the two first grounds stated together and the third one separately. The evidence to establish the fact that the house was burned through a criminal agency, and that appellant procured and aided and abetted the commission of the act, is, as contended by appellant, very largely circumstantial. There was no eyewitness to the setting of the fire which burned the house, however, the facts and the surrounding circumstances were sufficient to show to a moral certainty and beyond all reasonable doubt — to the exclusion of every other reasonable hypothesis — that either Murrah or Lawrence, or both, jointly indicted with appellant, set the fire that burned the house and had been employed to do so by appellant for the purpose of defrauding the insurance company which had it insured against loss by fire. We see no good purpose to be answered in setting out the facts and surrounding circumstances, which, we think, meet the requirements of the law in a case of this character. They were ample, and pointed unerringly to the conclusion reached by the jury.
Appellant was indicted under section 785 of the Code of 1930, which is in this language: "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 nor more than ten years."
The crime was committed while that statute was in force, but the trial was had after chapter 272, Laws of 1932, went into effect. It will be noticed that the provision for the violation of section 785, Code of 1930, is punishment in the penitentiary for not less than seven nor more than ten years. Chapter 272 of the Laws of 1932 repealed section 785 of the Code along with other sections dealing with the crime of arson. Section 5 of that chapter is a revision of section 785 of the Code, and is in this language: "Any person who wilfully and with intent to injure or defraud the insurer sets fire to or burns or attempts so to do or who causes to be burned or who aids, counsels or procures the burning of any building, structure or personal property, of whatsoever class or character, whether the property of himself or of another, which shall at the time be insured by any person, company or corporation against loss or damage by fire, shall be guilty of a felony and upon conviction thereof, be sentenced to the penitentiary for not less than one nor more than five years."
It will be observed that it provides for its violation a sentence in the penitentiary for not less than one, nor more than five, years. Appellant argues that he should have been sentenced under section 5 of this amendatory act instead of under section 785, Code of 1930, and that therefore in sentencing him to the penitentiary for seven years the court exceeded the maximum sentence of five years allowed by law.
Section 1361 of the Code of 1930 is as follows: "No statutory change of any law affecting a crime or its punishment or the collection of a penalty shall affect or defeat the prosecution of any crime committed prior to its enactment, or the collection of any penalty, whether such prosecution be instituted before or after such enactment; and all laws defining a crime or prescribing its punishment, or for the imposition of penalties, shall be continued in operation for the purpose of providing punishment for crimes committed under them, and for collection of such penalties, notwithstanding amendatory or repealing statutes, unless otherwise specially provided in such statutes."
It will be observed that under the last clause of this section all laws denouncing acts as crime and prescribing punishment therefor are continued in operation for the purpose of imposing punishment for such crimes, "notwithstanding amendatory or repealing statutes, unless otherwise specially provided in such statutes." (Italics ours.) Chapter 272, Laws of 1932, does not specifically provide that the crime of arson as defined by the repealed statutes (sections 780 to 785, inclusive, Code of 1930) shall not be punished under those statutes, but under the repealing statute; therefore, we hold by authority of section 1361, Code of 1930, that the penalty provided by section 785 of the Code governs, and that the court committed no error in imposing the sentence provided under that statute.
Affirmed.