13,442 | Ind. | Feb 18, 1887
The indictment in this case charged, “that 'William Garrett, on the 25th da}'' of June, 1886, at Henry county, in the State of Indiana, did then and there unlawfully, feloniously, wilfully and maliciously set fire to and burn a certain dwelling-house, then and there situate, of the value of one thousand dollars, then and there being the property of another person, to wit, Hannah Garrett, and did then and there, and thereby, unlawfully,- feloniously, wilfully and maliciously, burn and destroy said property, to the damage thereof in the sum of one thousand dollars, contrary to the form of the statute,” etc.
Upon his arraignment, appellant filed his written plea or answer herein, in two paragraphs, in substance as follows: 1. That he was not guilty, as charged in the indictment; .and 2. For a further and special answer, he averred that at the time of the commission of the alleged offence, charged in the indictment, he was of unsound mind.
To this second paragraph, the State replied by a general denial. The issues joined were tried by a jury, and a verdict was returned, finding appellant guilty as charged in the indictment,-and assessing his punishment at confinement in the State’s prison for the term of five years, and a fine in the sum of one dollar. Over his motion for a new trial, the court rendered judgment against him on the verdict.
Errors are assigned here by the appellant, which call in question (1) the overruling of his motion to quash the indictment, (2) the overruling of his motion for a new trial, and (3) the sufficiency of the facts stated in the indictment to constitute a public offence. Only one objection to the indictment, or to the sufficiency of the facts stated therein to constitute a public offence, has been pointed out by appellant’s counsel, in their brief of this cause; and that is, that
It is manifest from this statutory definition of the offence charged against the appellant, that the question of the occupancy of the dwelling-house, burned and destroyed, was an immaterial question, and that it was, therefore, wholly unnecessai-y to charge in the indictment who was the occupant ■of such dwelling-house. It was necessary, however, under the statute, that the indictment should show, as it did, that the dwelling-house burned was the property of another per.son than the defendant, and should give, as it did, the name of such other person. Ritchey v. State, 7 Blackf. 168" court="Ind." date_filed="1844-06-17" href="https://app.midpage.ai/document/ritchey-v-state-7030949?utm_source=webapp" opinion_id="7030949">7 Blackf. 168; Wolf v. State, 53 Ind. 30" court="Ind." date_filed="1876-05-15" href="https://app.midpage.ai/document/wolf-v-state-7041147?utm_source=webapp" opinion_id="7041147">53 Ind. 30. In the case under consideration, it was averred in the indictment, as we have seen, that the dwelling-house burned by appellant, as charged, was “the property of another person, to wit, Hannah Garrett.”
On the trial of this cause, it was shown by the evidence that Hannah Garrett, the person named in the indictment as the owner of the dwelling-house burned, was the wife of the appellant, William H. Garrett, and that he and his wife, Hannah, occupied, used and dwelt in such house, as their
In Snyder v. People, 26 Mich. 106" court="Mich." date_filed="1872-11-07" href="https://app.midpage.ai/document/snyder-v-people-6635849?utm_source=webapp" opinion_id="6635849">26 Mich. 106, a case similar in many respects to the case we are now considering, it was held by the Supreme Court of Michigan, that arson is an offence against the habitation, and regards the possession rather than the property; and that a husband, living with his wife and having a rightful possession, jointly with her, of a dwelling-house which she owns and they both occupy, is not guilty of arson in burning such dwelling-house. It was further held by the same learned court, in the same case, that the statutes of the State of Michigan, for the protection of the rights of married women, had not changed the marital unity of husband and wife ; nor had they changed the common law rule as to arson, where the burning is by the husband of the house of the wife, occupied by both as a dwelling or residence ; that such burning would not be arson at common law, nor was it the burning of the dwelling-house of another, contemplated by the statute of Michigan, defining the offence of arson.
Appellant’s counsel chiefly rely upon the doctrine of the case last cited for the reversal of the judgment, in the case-under consideration. We are of opinion, however, that it can not be correctly said that our statutes, for the protection..
Of course, these statutory provisions are, to some extent, in derogation of the common law, and must be construed strictly; but, in so far as they are inconsistent with the common law and the marital unity of husband and wife recognized therein, they must be regarded as the law of this State. This is settled by our decisions. Haas v. Shaw, 91 Ind. 384" court="Ind." date_filed="1883-05-29" href="https://app.midpage.ai/document/haas-v-shaw-7046510?utm_source=webapp" opinion_id="7046510">91 Ind. 384 (46 Am. R. 607); Frazer v. Clifford, 94 Ind. 482" court="Ind." date_filed="1884-04-03" href="https://app.midpage.ai/document/frazer-v-clifford-7046945?utm_source=webapp" opinion_id="7046945">94 Ind. 482; Dodge v. Kinzy, 101 Ind. 102" court="Ind." date_filed="1884-01-23" href="https://app.midpage.ai/document/dodge-v-kinzy-7047734?utm_source=webapp" opinion_id="7047734">101 Ind. 102; Barnett v. Harshbarger, 105 Ind. 410" court="Ind." date_filed="1886-03-13" href="https://app.midpage.ai/document/barnett-v-harshbarger-7048245?utm_source=webapp" opinion_id="7048245">105 Ind. 410.
Under the.se statutory provisions, declaring that the property of a married woman “ shall be and remain her own separate property, and under her own control, the same as if she were unmarried,” it must be held, we think, as we now hold, that the dwelling-house of Hannah Garrett, mentioned in the indictment, though occupied by her and her husband, the appellant, as a dwelling or residence, was the property of another person than the appellant, within the contemplation of our statute defining the offence of arson.
It will be readily seen from an examination of section 1927, supra, that arson as defined in our statute is a different offence, in many respects, from arson at the common law. Arson as defined in our statute is an offence against the property, as well as the possession; and the question of occupancy or non-occupancy, habitation or non-habitation, of or in the property, as we have seen, becomes and is an immaterial question.
It is claimed that the trial court erred in excluding certain evidence offered by appellant, tending to prove that he had furnished certain money to pay for building the house. There was no available error, we think, in the exclusion of this offered evidence. Even if he had furnished all the money to build the house, it became and was the property of his wife; and, in setting fire to and burning such house, he was guilty of arson.
Appellant’s counsel also complain of the court’s refusal to give the jury certain instructions at their request. In their brief of this cause, counsel show very clearly, as it seems to us, that the trial court gave the jury, of its own motion and in its own language, the law of the instructions asked for by them and refused. Besides this, it is not shown by the record that it contained all of the court’s instructions to the jury ; and in such case, if it appeared that the court erred in its refusal to give any instruction, we would be bound to presume in aid of the judgment, that the law of such instruction had been given to the jury by the court of its own motion. Fitzgerald v. Jerolaman, 10 Ind. 338" court="Ind." date_filed="1858-06-01" href="https://app.midpage.ai/document/fitzgerald-v-jerolaman-7033738?utm_source=webapp" opinion_id="7033738">10 Ind. 338; Myers v. Murphy, 60 Ind. 282" court="Ind." date_filed="1878-05-15" href="https://app.midpage.ai/document/myers-v-murphy-7042254?utm_source=webapp" opinion_id="7042254">60 Ind. 282; Stott v. Smith, 70 Ind. 298" court="Ind." date_filed="1880-05-15" href="https://app.midpage.ai/document/stott-v-smith-7043569?utm_source=webapp" opinion_id="7043569">70 Ind. 298.
Finally, appellant’s counsel question in argument the sufficiency of the evidence to sustain the verdict. It is not claimed that there is an absolute failure of evidence, on any material point, to sustain the verdict; and it has been approved by the trial court. In such case, we can not disturb the-verdict, even in a criminal cause, upon the weight or sufficiency of the evidence. Hudson v. State, 107 Ind. 372" court="Ind." date_filed="1886-09-16" href="https://app.midpage.ai/document/hudson-v-state-7048484?utm_source=webapp" opinion_id="7048484">107 Ind. 372, and cases there cited.
We have found no error in the record which requires the reversal of the judgment.
The judgment is affirmed, with costs.