Smith v. State, 23 Tex. Ct. App. 357

Smith v. State

23 Tex. Ct. App. 357 | Tex. App. | 1887

White, Presiding Judge.

Appellant was indicted for, and has been convicted of, arson, the house charged to have been burned being described as “a certain house then and there known as the Parker county poor farm prison, the property of Parker county.”

Appellant and two other parties, who had been convicted and fined for misdemeanors, were sent to the poor farm to work out their fines. When not at work they were confined in an iron cage in the prison, which prison was a wooden building. On the day in question, whilst the prisoners were in the iron cage, *362appellant wrapped some cotton taken from a mattress around a broom handle, ran the same through the bars of the cage into the fire in the fire place, and, when the cotton was sufficiently ignited, drew it back into the cage, and then ran it through the bars in the top of the cage and held it to the roof of the house, overhead, until the shingles caught fire and were burning—a hole having been burnt through the roof before the same was extinguished by the keeper of the prison. Defendant’s intent in setting fire to the house is not positvely proven, nor was anything said by him at the time which tended to show the intent and purpose beyond what his acts indicated. The other prisoners did and said nothing at the time, but as witnesses on the trial denied any complicity in the matter, though admitting that they did not attempt to interfere with or prevent defendant in his en deavors.

There is but a single bill of exceptions in the record, and that relates to omissions in the charge of the court to the jury with regard to two supposed essential features of the case, as made by the evidence. It is insisted that, inasmuch as the evidence leaves the motive and intent in doubt, and inasmuch as his intent and purpose in setting fire to the building might have been for the purpose of effecting his escape from prison, and not with any other willful or fraudulent intent, the court should have instructed the jury that if escape was the sole object, then defendant could not be convicted. The other objection to the charge is that it failed to instruct the jury upon the law of accomplice testimony, with reference to the evidence of his two fellow prisoners given against him at the trial.

Under our statute arson is the willful burning of any house, and a “house”'is any building, edifice or structure enclosed with walls and covered, whatever may be .the materials used for building. (Penal Code, arts. 679 and 680.) The burning is complete when the fire has actually communicated to a house, though it may neither be destroyed nor seriously injured; and it is of no consequence by what means the fire is communicated to a house, if the burning is designed. (Penal Code, arts., 684 and 685.)

In his work on Statutory Crimes, Mr. Bishop says: “A jail is held to be an inhabited dwelling house within the statutes against arson of such houses.” (Bish. Stat. Crimes, 2 ed., sec. 207.) In Delaney v. The State, 41 Texas, 601, it is said by Roberts, C. J.: “Arson is the willful burning of a house. The *363house need not be consumed with fire to constitute the offense. It will be sufficient to show that a person set fire to the house to the extent that some part of the house was on fire, unless it is made clearly to appear that it was accidental or was done for some other object wholly different from the intention to burn up or consume the house. If, for instance, it appeared from the evidence that a person confined in prison set fire to the door to burn off the lock, so as to make his escape, or that he burned a hole in the floor or in the wall for the same purpose, it would not be arson. So it has been held by the courts of other States. (The people v. Cotteral et al., 18 Johns., 115; State v. Mitchell, 5 Ired., 350.)

“If, however, a prisoner, or a number of prisoners in concert, should set fire to a^ jail without such definite purpose, but for the purpose of burning the jail sufficiently to produce the alarm of fire, and in the consequent confusion make an escape, being at the same time indifferent as to whether the jail was consumed or not, that would be arson.”

In his work on Criminal Law, Mr. Bishop thus discusses the question: “If a prisoner burns a hole in his cell, or otherwise burns the building in which he is confined, not from a desire to consume the building, but to effect his escape, his offense must be, according to the foregoing doctrines, arson; and so it has been held. On the other hand, the contrary has also been held; and unhappily, on this side are the majority of cases. One learned judge, after yielding to the authorities which sustain this view, added: ‘If, however, a prisoner, or a number of prisoners in cdncert, should set fire to a jail without such definite purpose, but for the purpose of burning the jail sufficiently to produce the alarm of fire, and in the consequent confusion make an escape, being at the same time indifferent as to whether the jail was consumed or not, that would be arson.’ (41 Texas, supra.) It is difficult to see why this admission should not carry with it the entire better doctrine.” (2 Bish. Crim. Law, 7 ed., sec. 15.)

Where the doctrine stated in Delaney’s case is cited in the text of Wharton’s Criminal Law (7 ed., sec. 829), the learned author in a note upon the subject says: “But, as a jail is a house in the sense in which the term is used in arson, this view can not be harmonized with other recent cases.” (See Com. v. Posey, 4 Cal., 109; Stevens v. Com., 4 Leigh, 683; Luker v. The State, 49 Ala., 30.)

*364Opinion delivered May 18, 1887.

In Lockett v. The State, 63 Alabama, 5, the rule announced is: “If a prisoner confined in a county jail set fire to the building with the intent only to burn a hole through which he may escape, not intending that the building should be further damaged, he is guilty of arson.”

In view of these authorities we are of opinion that the doctrine announced in Delaney’s case, to the effect that if a prisoner willfully fire a jail for the purpose of making his escape, with no design of burning the house down, should be overruled, and the same will be considered hereafter as overruled. Such being our view of the law in this case, it was not error in the learned trial judge to omit so to instruct the jury in this case.

As to the second ground of objection to the charge, we do not think that the testimony adduced establishes the fact that the two State’s witnesses who were confined with the defendant in the iron cage at the time of the burning were either accessories or accomplices, nor does it make them particeps criminis. Concealment of knowledge that a felony is to be committed does not make the party concealing it a particeps criminis, nor necessitate a corroboration of his testimony. (Noftsinger v. The State, 7 Texas Ct. App., 302; Rucker v. The State, Id., 550.)

Finding no reversible error in the transcript of this case, the judgment is affirmed.

Affirmed.