1 Wash. 345 | Wash. | 1890
Lead Opinion
The opinion of the court was delivered by
The record discloses that at a regular term of the district court of the counties of Thurston and Mason, held at the city of Olympia, at the December term of said court, an indictment was returned against the plaintiff in error, which indictment, omitting the entitling of the cause, reads as follows:
“Angus McClaine is accused by the grand jury of the Territory of Washington, for the counties of Mason and Thurston, of the crime of murder in the first degree, committed as follows: The said Angus McClaine, at the county of Mason, Territory of Washington, on the 10th day of November, 1887, feloniously, willfully and maliciously did set fire to a certain dwelling house, the property of one W. H. Kneeland, of the value of six thousand dollars, and used and occupied as a hotel by the said Angus McClaine and his family, and then" and there fel-oniously, willfully and maliciously burned said dwelling house. That by means of said setting fire to, and burning of said dwelling house as aforesaid, one Harry Connor, who was then and there known by the said Angus Mc-Claine to be occupying one of the rooms in said dwelling house, and known by said McClaine to be present in said room, was then and there in said room, within said dwelling house, burned and consumed, and of the burning and consuming then and there died. And the grand jury aforesaid, bjr force of the statute in such cases made and provided, say that said Angus McClaine, in manner and form aforesaid, did feloniously, willfully and of his malice aforethought, at said county and territory kill and murder Harry Connor.” (Properly signed and dated.)
The defendant having entered his plea of not guilty to said indictment, the trial of said cause was begun on the 9th day of December, 1887, and resulted in a verdict of guilty as charged in the indictment; and on the oth day of
The indictment is based upon § 823 of the code, as amended by the Session Laws of 1885 and 1886, on page 77, which reads as follows:
“Every person who shall willfully and maliciously setfire to the dwelling house [tent, cabin or any structure, no matter of what material constructed, used and occupied as a place of abode by any person or persons], any barn, stable, out-house, ship, steamboat, or other vessel, or any watercraft, milk house, banking house, distillery, manufactory, mechanics’ or artificers’shop,storehouse,building or room occupied as a shop or an office for professional business, or printing office of another, any public bridge, court house, jail, market house, seminary or college, edifice or building thereto belonging, or other public buildings, of the value of five dollars [or any stack of grain, hay or straw of another, of the value of five dollars], shall be deemed guilty of arson, and upon conviction thereof shall be imprisoned in the penitentiary not more than ten years nor less than one year, or in the county jail not more than six months nor less than one month, and be fined in any sum not exceeding one thousand dollars; and should the death of any person ensue therefrom, known to be occupying, or present on said premises at the time such premises are willfully and maliciously set fire to, the offender, on conviction thereof shall be deemed guilty of murder in the first degree.”
It is contended by plaintiff in error that the indictment in this case nowhere states that the dwelling house burned was used and occupied as a place of abode by anybody; and that the allegation that it was used and occupied as a hotel by the said Angus McClaine and his family is not sufficient under this statute. That it is the kind qf occupancy contemplated by the statute where the building burned is alleged tobe a “dwelling house.” That so far as the indictment alleging that the dwelling house was the property of one W. H. Kneeland is concerned, the word “ property” is not used in the statute in connection with the burning of a dwelling house. That it is not the burning of a dwelling house th^property of another that is included in the statute; but that it is the burning of the dwelling house of another that the statute defines as arson. That our statute in reference to the burning of a dwelling houseissubstantially the same as arson at the common law. Were we to concede this last proposition we should be compelled to pronounce the indictment insufficient; for at common law arson was the malicious and willful burning of the dwelling house of another. The gist of the offense being the danger to the life of persons who were dwelling in the house. It was an offense against the habitation and regarded the possession rather than the property. And when the burning of any other house than a dwelling house was included within the offense, as theburningof barnsand other out-houses, it was on the theory that the flames would extend to the dwelling and endanger the habitation. Hence the burning of many structures, which is arson under our statutes, was sim ply a misdemeanor at the common law. At the common law there was no question of value. It mattered not whether the house burned was worth thousands of dollars or but a few shillings; whether it was a palace
But a careful reading of our statute leads us to the conclusion that the legislature had in contemplation the protection of property as well as the preservation of life; for in every instance, including even a dwelling house, a moneyed value is attached, and to secure a conviction for arson under the statute value would have to be alleged and proven. The statutory crime and the common law crime are radically different. And we can but adopt the view of the attorney general, that the legislature intended to define and punish the crime of arson upon an entirely different principle from that in which the common law made it belong; that they have intended to define a new crime, and the common law definition cannot be resorted to, even for the purpose of aiding in the construction of this law, because it is manifest that the legislature used words in an entirely different sense from the sense in which they were used at common law.
From the number of buildings and structures made the subject of arson in § 823 of the code, the burning of many of which could in nowise ordinarily endanger life, it is evident that the main idea of the legislature was the protection of property; and this is confirmed by the fact that the legislature afterwards added “ any stack of grain, hay or straw of another, of the value of five dollars,” thereby carrying the provisions of the statute beyond the realm of habitation, although the question of valuation is never lost sight of. Under the provisions of \ 823, it would not have been arson to have burned a stack of grain, hay or straw of another; but the experience of the people soon after that enactment taught them that this was a class of property which needed protection from incendiaries, and the legislature, doubtless in response to their demands, incorporated this further protection of property under this section. The qualifying words “ of another ” are evidently used in the
It is urged again that the indictment is defective, because it does not charge that the dwelling house was used and occupied as a place of abode by any person or persons. Whether the allegation that “the dwelling house was used and occupied as a hotel by the said Angus McClaine and his family” is a sufficient allegation, where an allegation of occupancy as a place of abode is required by the statute, we will not now discuss, for we are clearly of the opinion that under our statute no such an allegation is necessary, as the words “ used and occupied as a place of abode by any person” were not intended to qualify the words “ dwelling house,” “ tent or cabin.” These words are not found in § 823, although the word “ dwelling house” is in said section ; the word “ dwelling house ” being unqualified excepting by the words “ of another.” Afterwards, during the session of 1885-6, the words “ tent or cabin ” were added, because it was questioned whether the word “ dwelling house ” was comprehensive enough to include these mean habitations; and, so that there might be no question about any manner of dwelling being included in the statute, after the words “ tent or cabin ” were added the words “ or any other structure, no matter of what material constructed, used and occupied as a place of abode by any person or persons;” the words “ used and occupied as a place of abode by any person or persons ”
We do not think there is any force in the objection that the indictment does not charge, by direct statement, that the plaintiff in error knew that Connor, the deceased, was occupying or present in said premises at the time they were fired, but that it only appeared by way of recital. The language of the indictment is, “That by means of said setting fire to, and the burning of said dwelling house, as aforesaid, one Harry Connor, who was then and there known by said Angus McClaine to be occupying one of the rooms in said dwelling house, and known by said Angus McClaine to be present in said room,” etc. We cannot understand how an averment could be more directly stated than this. It would make it no stronger and no more direct to transpose the words and say, “ The said McClaine did know,” etc. It is simply a choice of expression and arrangement of words. We are of the opinion that the indictment contains every averment necessary to charge the statutory crime of arson.
We now pass to the third and fourth grounds of objection urged by plaintiff in error; objections which are more serious, in our opinion, and which are fatal to the prosecution in this case. At the instance of the prosecuting attorney the court gave the jury the following instruction : “You must find from the evidence that Harry Connor was
Here it is not even hinted at that the defendant need have any knowledge whatever of Connor’s whereabouts at thAtime the fire was set, or anytime during the fire; but the Jury is charged in substance that the essential facts are,
It seems to us that the case at bar is a much more extrem e case than any above cited; for the instruction of the court on its own motion, to which the objection is raised, was evidently an attempt to group the essential elements of the crime together and present them, thus condensed, for the consideration of the jury. And the jury, always anxious to ascertain the opinion of the court, are more inclined to give consideration to its voluntary instructions than to instructions given by request of either the prosecution or defense, and would beliable, if indeed not actually justified in this case, in concluding that the essential facts necessary to be proven to ensure a conviction, were the identical essential facts mentioned by the court on its own motion. And even if all the instructions in this case were considered together, without misleading or causing any embarrass
Concurrence Opinion
I concur in the judgment, but not entirely in the view of my brothers as to the construction of the statute defining arson.