23 Del. 505 | Delaware Court of Oyer and Terminer | 1896
charging the jury:
Gentlemen of the jury:—The prisoner at the bar, Dennis Dinneen, is indicted for the crime of arson; which at common law constituted, as defined by Lord Coke, “the malicious and voluntary burning of the house of another, by night or by day.” The offenses of burning houses and other property are now, in the several States of this country, provided for by various statutes, among which is included a statute in our own State. The evidence,therefore, upon indictment for this offense, may vary in some respects from that required in an indictment at common law. I believe that this is the first case, so far as I am informed, that has arisen under this statute. Our statute, under which the indictment is framed, provides that “If any person shall wilfully and maliciously burn, or set on fire any dwelling house, (whether it be his own or that of another, in which there shall be at any time some human being;) or any store, or other building, adjoining to or parcel of a dwelling house (whether it be his own or that of another, in which there shall be at the time some human being;) such person shall be deemed guilty of arson (of the first degree) and felony,” etc.
The indictment in this case is framed under the first paragraph of that section; that is, the party is charged, with the burning of a dwelling house in which there was a human being, not a store or other building, as under the second paragraph.
To convict the prisoner of the offense alleged under this indictment, the State must prove to your satisfaction; first, the burning—which would be, in this case, if you please, a burning that would constitute the entire destruction of the building—“or setting on fire.” The mere setting on fire, if that fact be proved, is of course equivalent to the destruction of the building when it is burned up. Second, that it was a dwelling house in which at the time of burning or setting on fire, there was “some human being.” Third, that the offense was committed "wilfully and maliciously.”
Now, all these facts must be established satisfactorily to you,
And we must say to you that the ownership of the dwelling house, in the construction of this statute, (which differs from the common law,) whether it be that of the party charged with the offense or that of another, makes no difference, as the gravamen of the offense is the burning or setting on fire of a dwelling house “ in which there shall be at the time some human being.” So that if there be a setting on fire of a dwelling house, it matters not whom it belongs to, whether it be the dwelling house of the owner himself or of another party, the gravamen of the offense is a dwelling house in which there is a human being.
The evidence to prove a crime such as to justify conviction may be direct and positive, as when the crime is proved by witnesses who saw the act charged actually committed, or where the party charged admits or confesses, leaving no doubt or uncertainty as to the guilt of the party charged. Now, that is the strongest evidence in one sense; and yet there may be other evidence stronger than that. But where the evidence is positive —for instance, if a man kills another and witnesses around see him do it, see him fire the shot, if you please, or see him strike the other with some instrument, from which the other falls dead—that is a positive fact, that is direct testimony; but you will observe, gentlemen, that if the law rested upon that fact, no man could be convicted of a crime unless there was direct and positive evidence that he did it, and many criminals would escape
Where a crime has been committed and there is no direct and positive proof thereof, but facts and circumstances are proved as showing motive, the declarations by parties charged and other matters, if taken together, would satisfy a reasonable mind of the guilt of the party; in other words, as a whole, constituting an unbroken chain or secondary evidence, under such proof, the evidence would be equally as strong as that of direct and positive proof. These presumptions (or “circumstantial evidence” as defined in the books) are of three kinds: first, violent presumption, where the facts and circumstances proved, necessarily attend the facts presumed; as, for instance, if a man is killed in a house, or along a road and some person be seen running from the place, with a weapon drawn and covered with blood; that is a violent presumption that he did the deed. It is not positive as contra-distinguished from direct and positive evidence, which is where a man saw the prisoner do the act. But if a man, if you please, has a knife upon which his name appears or one which everybody knows, and it is found sticking in the wound on the dead man, and that is connected with the fact that he had a quarrel with his adversary before that and swore he would kill him, and that
The next kind of evidence is probable presumption; that is, where there are facts and circumstances surrounding a case, where a tragedy had been committed or some unlawful act done, connecting somebody or other with it. As, for instance, if an article be stolen and the accused be seen coming from the house in question that is a probable presumption. A man coming from the house does not furnish a violent presumption as would be the case if the man coming from the house was found with the stolen goods upon his person. Then there would be a violent presumption that he had taken the goods. Circumstances would naturally occur, from a crime having been committed, to show that the man was in some way connected with it by his immediate surroundings or the manner in which he acted or his sayings or his confession.
The Court having thus defined the general principles of law applicable in a case of an indictment for arson, you are to decide upon the evidence produced before you, as applied to the law laid down by the Court, as to the guilt or innocence of the prisoner. You have heard the testimonv on both sides; that is a matter with you. There is in this case no direct or positive proof of the guilt of the party charged. I mean by that that nobody saw him do it, according to the evidence here; it is to be taken from the circumstances which surround this case. You heard the testimony; that of the prosecuting witness that he was upon the ladder, and as to the identity of either party. That is a circumstance. As to all the other facts, his declarations and what he said, as to the motives that influenced him, they are circumstances; and therefore they bring it under the head, as I say, of what is called “circumstantial testimony.” There is, in this case, no direct or positive proof of the guilt of the party charged. The evidence is presumptive or circumstantial. We must say to you that a party charged is presumed to be innocent until he is proved guilty. You are to decide this case upon presumptive
We have been asked to charge you that, as witnesses who were produced and who testified in behalf of the prisoner were near relations of and kin to the prisoner, their testimony is to be taken with great caution. ■ We must say to you that you are the sole judges of the credibility of the witnesses. If competent, the Court allows them to testify. What faith and credit are to be given them is within your sole province. They stand on the same footing with other witnesses. The law applicable to accomplices does not apply to relations. All classes interested or even parties accused are competent under our laws. Their credibility is a matter with you. You may accept or reject their testimony. It is your sole right to. decide the weight of testimony. If conflicting, you should reconcile it if possible. If you cannot, then you are to consider and give weight to the testimony of such as you think have had the best opportunities for a knowledge of this act and who are free from bias. In other words, you are to decide on the testimony given you, and are the sole and only judge of it.
We have been asked to charge you, that, if there be a reasonable doubt in your minds as to the guilt of the prisoner, he shall be entitled to the benefit of it, as laid down in 9 Houston, 386, being a charge delivered by our late Chief Justice Comegys, in the case of The State vs. Fiftzpatrick and McGurgan; which is undoubtedly the law and is in the following words: “It is due to
Now, gentlemen, we have given you the law. The facts have been given here before you. You are to apply the facts here—to judge of the facts, and apply them to the law as we have laid it down.
Verdict, not guilty