Opinion
30288.
DECIDED FEBRUARY 19, 1944.
Arson; from Early superior court — Judge Worrill. August 23, 1943.
Lowrey Stone, A. H. Gray, for plaintiff in error.
R. A. Patterson, solicitor-general, Hooper Miller, contra.
The denial of a new trial was error.
DECIDED FEBRUARY 19, 1944.
The defendant was convicted of the offense of arson, but on recommendation of the jury, was given a misdemeanor sentence. His motion for a new trial was overruled, and that judgment is assigned as error. The indictment was drawn under the Code, § 26-2210, which provides that "any person who wilfully or maliciously and with intent to injure or defraud the insurer sets fire to or burns, or causes to be burned, or who aids, counsels, or procures the burning of any goods, wares, merchandise, or other chattels, or personal property of any kind, the property of himself or of another, which shall at the time be insured by any person or corporation against loss or damage by fire, shall, upon conviction thereof, be sentenced to the penitentiary for not less than one nor more than five years." The indictment charged that the defendant and Ulysses Morvant, on April 14, 1941, in Early County, Georgia, set fire to and burned certain described personal property of the defendant, said property being then insured against loss and damage by fire in the Calvert Fire Insurance Company, the policy being numbered 365-233D, and issued to the defendant, for the amount of $2000. Part of said property was also insured in the sum of $1805 by the Federal Insurance Company, the policy being numbered A-682000, and was issued to the defendant and Elie Seaux; and part of said property was also insured by the Piedmont Fire Insurance Company in the sum of $2800, the policy being issued to the defendant. The indictment charged that all of said insurance was in force at the time of the fire, and that the defendant and Ulysses Morvant burned the property with intent to defraud the above-named insurance companies. Upon the trial a copy (marked "duplicate") of a policy of insurance issued by the Calvert Fire Insurance Company, insuring Elie Seaux, purchaser, and Commercial Credit Company, and covering part of the property charged to have been burned, was introduced in evidence. The policy contained the following clause: "In witness whereof, this company has executed and attested these presents; but this policy shall not be valid unless countersigned by a duly authorized agent of the company." The record fails to show that the policy was ever countersigned by such an agent. Also attached to the policy was the following "rider:" "Special Indorsement. EFF. 3-24-41. The name of Elie Seaux is hereby eliminated from the policy hereunder — name of the assured — Mr. Nolan Hargrave. All other terms and conditions remain unchanged. This endorsement, when countersigned by an authorized agent of the company, and attached to policy No. 365-233D of Calvert Fire Insurance Company, issued to Elie Seaux, La., shall form a part of said policy. Countersigned at New Orleans, La., this 24 day of March, 1941. Agent."
The record fails to show that the endorsement was ever countersigned by any agent of the company, the line for his signature being left blank. The evidence was objected to as illegal and immaterial on the ground that the indictment charged that the policy of the Calvert Fire Insurance Company was issued to Nolan Hargrave, whereas the purported copy of the policy introduced in evidence shows that the insured therein were Elie Seaux and Commercial Credit Company, and that the only connection between the policy and Hargrave was a recital in the "rider" (attached to the policy), which stipulated that it would be valid only when countersigned by an agent of the insurance company, and that the "rider" shows on its face that it was never so countersigned. The evidence was inadmissible and prejudicial to the defendant.
Two other purported copies of insurance policies were introduced in evidence, over the objection of the defendant, one being a "copy" of a policy issued by the Federal Insurance Company, and the other, a "copy" of a policy issued by the Home Insurance Company. Each of these purported copies, while not as defective as the purported copy of the policy issued by the Calvert Fire Insurance Company, was defective in failing to show that it was a genuine copy of the original policy. The State endeavored to prove by the testimony of Fred L. Seaman that the three purported copies were genuine copies of the originals. This witness testified on direct examination that the "copies" introduced in evidence were correct copies of the originals, but on cross-examination he admitted that his testimony was based solely on what he had been told by other persons. Therefore his testimony that the "copies" were correct copies of the originals was purely hearsay and inadmissible. The court erred in admitting in evidence the three "copies" and the testimony of the witness Seaman.
The other assignment of error, based upon an excerpt from the charge of the court, when considered in the light of the entire charge and the facts of the case, is without merit. Since the case must be tried again, the general grounds of the motion for new trial are not now considered.
Judgment reversed. MacIntyre and Gardner, JJ., concur.