188 Ind. 477 | Ind. | 1919
Lead Opinion
— Appellant was indicted for arson. §2260 Burns 1914, Acts 1905 p. 584, §371. He was tried by the court and found guilty, fined $1,000, and sentenced.
The substance of the indictment necessary to be considered in this opinion is that appellant on December 10, 1916, did set fire to and burn a certain building used for residence, manufacturing and commerce, known as 122 E. Ohio Street, in the city of Indianapolis; that the building was of the value of $50,000, and was the property of Samuel E. Rauh; that the damage done to the building by the burning was $500.
The questions arise on motion for a new trial: (1) Error in permitting evidence .of insurance and proof of loss concerning certain personal property which appellant had in the building. (2) That the evidence does not show in dollars and cents what damage was done to the building, and therefore did not authorize a fine of $1,000. (3) That the ownership and value of the building, on December 10, 1916, is not shown by the evidence.
But appellant presents a further question that is very clear from the record. At the outset of the evidence there was a stipulation as follows:
“It is hereby stipulated and agreed by the parties herein that a certain building situated in Marion county and used for the purpose of residence, manufacturer and commerce, commonly known as 122 E. . Ohio street in the city of Indianapolis, Marion county, Indiana, was of the value of Fifty Thousand Dollars and was the property of one Samuel E. Rauh.”
Appellant’s other contention is that, there being no evidence of the damage to the building, the court was not authorized to inflict a fine of $1,000. Appellant bases his contention upon decisions of this court. The first one being the case of Ritchey v. State (1844), 7 Blackf. 168; the second being Kenningham v. State (1889), 120 Ind. 322, 22 N. E. 313. The case in the 7th Blackford, supra, was decided under §25, chapter 53, R. S. 1843, and the penalty then was imprisonment and fine “not exceeding double the value of the property destroyed.” The 120th Indiana, supra, turned on the proposition of an attempt to burn, and was under the acts of 1881 (§1927 R. S. 1881). The proposition was that the statute as then worded did not provide for an attempt to burn. At the next session of the legislature after that decision, the act was amended (Acts 1891 p. 402). This act, with a few enlargements and changing of the wording as to the things burned or attempted to be burned, is our present act. §2260 Burns 1914, supra. The act now is: “Whoever wilfully and maliciously burns or attempts to burn any dwelling house. * * * the property so burned or attempted to be burned, being of the value of twenty dollars or upwards, and being the property of another, or being insured against loss or damage by fire, and the burning or attempt to bum being with intent to prejudice or defraud the insurer, is guilty of arson, and, on
The finding is therefore not sustained by sufficient evidence, and the judgment is reversed, with instructions to grant a new trial.
Rehearing
— Counsel for the state failed in their original brief to argue or cite authority to the proposition on which the case was reversed. They now claim that their failure to argue or cite authorities on this . point was because appellant’s original brief did not strongly urge this point; that they were therefore surprised at the decision of the court. We might invoke the rules of the court, but state’s counsel present a contention that we think should be settled.
The state says that the admission as to ownership and Value of the property should be interpreted to mean on the date charged in the indictment. Numerous civil cases are cited, and one criminal case (People v. Nolan [1917], 33 Cal. App. 493, 165 Pac. 715), to sustain this contention.
The California case is based on rules laid down as to stipulations and agreements in civil cases. It contents itself with citing the text of encyclopedias of law. That text, when examined, is sustained by decisions in civil cases only. This California case is squarely in point. The defendant in that case was charged with selling alcoholic liquor in no-license territory. During the trial of the case, the state’s attorney proposed to the defendant’s attorney that the territory charged in the indict- • ment be admitted to be no-license territory. Defendant’s attorney said, “Yes.” On appeal the point was raised that this admission did not fix the date charged in the indictment, and the court said: “We must assume that the district attorney knew that it was necessary to establish the truth of the material averments of the indictment, and that one of such averments was the existence of the no-license ordinance at the time of the alleged offense.”
Had the state, in the instant case, placed Samuel E. Rauh on the witness stand and proven by him that he was the owner of the building at 122 E. Ohio street and
Petition for rehearing denied.
Note. — Reported in 123 N. E. 241. Arson: ownership of property as affecting- crime, 1 Ann. Gas. 621, Ann. Cas. 1912A 1126; commission of, with intent to defraud insurer of property, Ann. Cas. 191SC 1164, 32 L. R. A. 648. See under (1) 5 C. J. 547, 550; (2) 5 C. J. 569;-(3) 5 C. J. 574; (4, 5) 5 C. J. 552.