76 So. 639 | Miss. | 1917
delivered the opinion of the court.
The appellant, Clarence Rayborn, was indicted and convicted in the circuit court of Walthall county of the crime of unlawfully, willfully, maliciously, and feloniously setting fire to and burning a certain fence. The indictment was based upon section 1042 of the Code of 1906. He was sentenced to a term of six months on the county farm and to pay a fine of $100.00, from which sentence and judgment this appeal is prosecuted.
An affidavit was originally made against this appellant' before a justice of the peace, to which, in the justice of the peace court, he pleaded guilty and was sentenced, but prosecuted an appeal from the sentence and judgment of the justice of the peace court. In the circuit court he was at first put upon trial under this affidavit, but after the introduction of the testimony, the court sustained a demurrer to the evidence. The grand jury then indicted the defendant, and under this indictment he was convicted. From which judgment the present appeal was prosecuted. The fact that the fence was burned is testified to by several witnesses who passed the place while the fence was burning. These witnesses say that the fire started in what they term “the rough” near the fence. The fence and the rough were both burning for a distance of a number of yards when seen by the witnesses.
There were two confessions of the appellant introduced by the state. One of these was made to the county attorney in the presence of the constable and another witness after the appellant had been arrested. The other was his plea of guilty before the justice of the peace.
It is only necessary for us to consider the first question, viz., whether or not the corpus delicti was sufficiently proven without considering the two alleged confessions. This court has repeatedly held that the corpus delicti must be proven by evidence aliunde the confessions of the accused. Stanley v. State, 82 Miss. 498, 34 So. 360; Jenkins v. State, 41 Miss. 582; Jenkins v. State, 98 Miss. 717, 54 So. 158. In the latter case, in speaking of a plea of guilty entered before a justice of the peace, the court had this to say about it: “The plea of guilty entered by the appellant in the trial before the justice of the peace was entitled to no more weight in establishing the corpus delicti than the extrajudicial confession testified to by the witness Walker. ’ ’
The mere fact that the fence was burned does not establish the corpus delicti. The criminal agency must be proven either by direct or circumstantial testimony. “The corpus delicti, in a case of arson consists, not only in the proof of the burning of the house or other thing burned, but of criminal agency in causing the burning.” Spears v. State, 92 Miss. 619, 46 So. 166, 16 L. R. A. (N. S.) 285. This doctrine is reaffirmed in the late case of Barron v. State, 111 Miss. 231, 71 So. 374. In conclusion we say that there was no testimony whatever aliunde the confessions to establish that the fire was caused by any criminal agency, which is necessary before the defendant can be convicted in this case.
Reversed and remanded.
