The opinion of the court was delivered by
This is an appeal by Terrance Houck, following his conviction by jury trial in Montgomery District Court, of two counts of aggravated arson, K.S.A. 21-3718(1)(a), K.S.A. 21-3719; two counts of conspiracy to commit aggravated arson, K.S.A. *131 21-3302, -3718(1)(a) and -3719; one count of felony murder, K.S.A. 21-3401; and one count of felony theft, K.S.A. 21-3701(b). The controlling issue is whether the evidence was sufficient to establish the crime of aggravated arson under K.S.A. 21-3718(1)(a) and -3719.
Briefly, these are the facts. Terrance Houck owned two houses in Independence, Kansas, one located at 1328 West Chestnut, the other at 729 South 16th Street. On June 25, 1980, the house on Chestnut was damaged by fire. Albert Hughes was the tenant; he was inside the house when the fire was discovered. The Marysville Mutual Insurance Company had a policy of insurance covering the Chestnut Street property. Houck, as owner, was the named insured. He collected $4,900 from Marysville Mutual for his loss.
On January 29, 1981, fire destroyed the 16th Street property. Carl Clay was in thе house when it burned, and he was killed. The house was uninsured, but the First National Bank of Elk City held a mortgage on it.
Arson was not suspected. The fire chief concluded that both fires were caused by careless smoking. Houck, meanwhile, was charged on August 28, 1980, and was convicted on March 5, 1981, of aiding and abetting arson and theft by deception. These charges arose out of yet a third fire. On December 21, 1981, he was placed on parole, and on June 3, 1982, his parole offiсer granted Houck’s request and authorized him to move to Arkansas. There he reported to an Arkansas parole officer upon his arrival in that state, and he remained under the supervision of that officer.
An arson investigation was initiated in April or May, 1983, when Independence authorities received anonymous letters from someone in Arkansas. Two statements were taken from the defendant. The first, taken in Arkansas on May 22,1983, covered the Chestnut Street firе. The second, taken in Independence on May 24, 1983, covered the 16th Street fire. In regard to the Chestnut Street fire, defendant told police officers that he was buying several houses from John Briggs, and the Chestnut Street house was insured through John’s son, Robert Briggs, an insurance agent. Robert Briggs called him several times and finally defendant went in to see him. Robert Briggs suggested that the Chestnut Street house was insured and a fire at that address *132 might get the defendant out of debt. Houck said that he thеn talked with Michael Harris, and told Harris that if the house would accidentally burn the burning would be worth about $500. The house later burned and Houck collected on the insurance policy. Robert Briggs held out of the proceeds the money that Houck owed John Briggs (about $4,780), and Houck received a check from Robert Briggs for the balance, $120. In the May 22 statement, Houck denied ever talking to Harris about setting fire to the 16th Street house.
On the following day, May 23, Houck was returnеd to Kansas and on May 24, he gave a statement concerning the 16th Street fire. He stated that Suretta Beach, Carl Clay’s lady friend, came to him and asked him to burn the 16th Street house so that Clay would die and she could collect on an insurance policy which she held on Clay’s life. She insisted the fire occur on January 29, 1981. She promised Houck that she would pay him after she received the insurance money. She also told him that the windows and rear door were barred and that the fire should be started on the front porch so that Clay could not escape. Houck talked to Michael Harris and paid him $500 to set the fire and promised to pay him more when the job was finished. When Harris said he had no way to carry gasoline, Houck told him that there was a five-gallon gasoline can in the back of his truck. On the morning of January 29, Houck went to a coffee shop about 6:00 o’clock and then went down to 16th Street to get Clay оut of the house. When Houck arrived, the house was already on fire. Houck went on to work. After the fire, Suretta Beach stopped him on his way home and told him she would pay him as soon as she got the insurance money. She never paid him anything. Both of these statements were received in evidence.
At trial, Suretta Beach was called as a witness for the State. She testified that the windows and back door of the 16th Street house were sealed for weаtherization. She denied hiring anyone to burn the house, and testified that she had no life insurance on Clay. She denied collecting any insurance money after he died. Michael Harris was killed in 1982, and John Briggs died in August 1983, before this trial, and thus neither was available as a witness. Robert Briggs, called as a witness for the State, testified as to the insurance coverage, the proof of loss, and the disbursement of the policy proceeds. He was not asked if he suggested to Houсk that he burn the house.
*133 Two other witnesses, Gary and Michael VanGilder, testified that Houck approached them about burning a house. The witnesses, however, were unsure of the location of the target properties.
The first issue is whether the evidence was sufficient to sustain the convictions of aggravated arson, as charged in the second amended information. Both charges allege the damaging of a building in which another person has an interest, without the consent of such other persоn. Count No. 2 charges defendant with the aggravated arson of the 16th Street property “in which another person has an interest, to-wit: The First National Bank of Elk City, Kansas, without the consent of such other person . . .
Count No. 5 charges defendant with the aggravated arson of the Chestnut Street property “in which another person has an interest, to-wit: Marysville Mutual, Marysville, Kansas, and Albert Hughes without the consent of such other persons . . . .” Arson is defined by K.S.A. 21-3718 as follows:
“21-3718. Arson. (1) Arson is knowingly, by means of fire or explosive:
“(a) Damaging any building or property in which another person has any interest without the consent of such other person; or
“(b) Damaging any building or property with intent to injure or defraud an insurer or lienholder.
“(2) Arson is a class C felony.” (Emphasis added.)
Aggravated arson is defined by K.S.A. 21-3719 as follows:
“21-3719. Aggravated arson. Aggravated arson is arson, as defined in section 21-3718, and committed upon a building or property in which there is some human being.
“Aggravated arson is a class B felony.”
Houck argues that neither the bank nor the insurance company had any interest in the property that burned. Our former statute, G.S. 1949, 21-581, prohibited the burning of the property of another person. In
State v. Crosby,
“[G.S. 1949] 67-301 [now K.S.A. 58-2301] provides that in the absence of stipulations to the contrary, the mortgagor of real property may retain the possession thereof. It has been held many times that a mortgage on real property is a lien thereon; that it is merely an incumbrance of security for a debt; that title to the property remains in the mortgagor; that in the foreclosure of a mortgage on real property legal title to the property does not pass until the sheriff s deed is executed and delivered, and that a mortgage does not convey any interest in the land itself. (Penn Mutual Life Ins. Co. v. Tittel,153 Kan. 530 , Syl. 2,111 P.2d 1116 [opinion on motion for rehearing,153 Kan. 747 ,114 P.2d 312 ], and Mid-Continent Supply Co. v. Hauser,176 Kan. 9 , 15,269 P.2d 453 .)
“Conceding, for the sake of argument, that in one sense of the word a mortgagee has an ‘interest’ in the mortgaged prоperty (the Bodwell case, supra), we are not here concerned with civil rights and liabilities growing out of the relationship, such as for acts of waste committed by the mortgagor, and the like. Our question is whether mortgaged real property is ‘the property of another person’ (the mortgagee) within the meaning of the statute, 21-581.
“We think the answer is to be found in the principles and rules applicable to criminal prosecutions generally, a primary one being that criminal statutes are to be given a strict construction. . . . [A] rule of strict construction is to be applied to criminal statutes, and courts should not extend them to embrace acts or conduct not clearly included within the prohibitions of the statute.
“In our opinion the dwelling house here involved was not the ‘property’ of the mortgagee within the meaning of the statute, and therefore count one of the information does not allege a public offense.”182 Kan. at 683-84 .
The
Bodwell
case, referred to in
Crosby,
is
Bodwell v. Heaton,
“A mortgage upon such property is a lien upon it, and although the mortgagee has no rights of possession or title to the land, he certainly has an interest in it, and under the statutory definition a mortgagee has property in the land mortgaged, so that he may interplead in any cause in which it is sought to be taken.”40 Kan. at 38 .
The information here charged that the First National Bank had *135 an interest in the 16th Street property. It held a mortgage and was thus “interested” in the property as security for its loan. The issue hеre is whether the mortgagee held an interest in the building or property under the specific language of K.S.A. 21-3718(l)(a). Reading the statute in its entirety, we note that the following subsection (b) makes it an offense to knowingly, by means of fire or explosive, damage any building or property with intent to injure or defraud an insurer or lienholder. Obviously, the Bank was a lienholder and the burning of the house with intent to defraud the mortgagee would constitute a violation of subsection (b). If, as the Statе argues, subsection (a) prohibits destruction of mortgaged property, we fail to see why the legislature would make it a separate crime to destroy mortgaged property with intent to defraud the mortgagee by enacting subsection (b).
The statements in the first quoted paragraph from the Crosby opinion are still true. A mortgagee has a lien, not an ownership interest in the land. Construing subsection (a) strictly, as we are required to do in the case of criminal statutes, we hold that a mortgagee does not have an interest in the property upon which it holds a mortgage, within the meaning of K.S.A. 21-3718(l)(a).
Similarly, does the “interest” of the insurance carrier, Marysville Mutual, constitute an “interest” in the Chestnut Street property within the meaning of K.S.A. 2I-3718(l)(a)P Its “interest,” if any, is specifically protected by subsection (b). Insurance is a matter of contract. The insurance carrier has an interest in the contract and in the premiums. It has no legal interest in the insured property. We hold that an insurer does not have an interest in the property it insures, within the meaning of K.S.A. 21-3718(l)(a).
Appellant, despite the arguments of the State to the contrary, is not challenging the information; he is challenging the sufficiency of the evidence to convict him of the specific charges of aggravated arson made against him in the information — knowingly, by means of fire or explosive, damaging a building in which another person has an interest, without the consent of such other person. For the reasons stated above, we hold thаt neither the mortgagee nor the insurance carrier had an interest under K.S.A. 21-3718(l)(a) in the property destroyed. Whether the State’s evidence would or would not be sufficient to prove a *136 charge under K.S.A. 21-3718(l)(b) is an academic question not properly before us. The State has the responsibility to appropriately charge the accused with the crime it believes the accused has committed. If the evidence introduced at trial does not support a conviction of the offense charged, the accused cannot be found guilty of some other offense which the State did not see fit to charge. Here, the State did not prove the charges it brought against Houck and, therefore, the convictions of aggravated arson must be reversed.
The defendant next contends that the State’s failure to charge him for almost three years after the crimes occurred resulted in a delay whiсh prejudiced him and denied him due process under the United States Constitution. He first argues that his absence from the state did not toll the running of the statute of limitations. The statute of limitations for the charges at issue is two years. K.S.A. 21-3106(2). That statute specifically provides, in subsection (3), that the period within which a prosecution must be commenced shall not include any period in which “[t]he accused is absent from the state.” Thus, if the period during which Houck was in Arkansas is excluded, this prosecution was timely.
Defendant argues that he was on parole and under the joint supervision of Kansas and Arkansas parole officers during all the time that he was in Arkansas. He contends that he was in the “constructive custody” of the State of Kansas and the State could have contacted him at any time or could have returned him to Kansas if it wished. There is no dispute, however, that Houck voluntarily sought leave to move to Arkansas. He left the statе of his own free will and remained out of state as a personal choice during the period in question. Pie was not ordered to leave the state; he was granted permission upon his request.
K.S.A. 1985 Supp. 22-3717(h) provides in applicable part that: “Every inmate while on parole shall remain in the legal custody of the secretary of corrections and is subject to the orders of the secretary.” In
Johnson v. Stucker,
We have reviewed the cases cited by counsel, but find them distinguishable. A review of the cases dealing with prisoners held out of state, and servicemen absent from the state, would not be helpful. We have found no case involving facts similar to those at hand. It seems to us that the defendant is in no better рosition than a person not on parole, who voluntarily absents himself from the state, and whose whereabouts are known by the Kansas officers. Should the statute be tolled as to one and not the other? We think not. We hold that Houck was voluntarily absent from the state and thus the two-year statute of limitations was tolled during his absence. The prosecution was timely commenced.
Houck also argues that due process requires dismissal because the prеindictment delay caused substantial prejudice to his rights. We discussed a similar claim and the law applicable thereto in
State v. McCorgary,
In this case, as in McCorgary, there is not the slightest indication that the delay by the State was for the purpose of gaining tactical advantage. To the contrary, the State had no suspicion of arson until it received anonymous letters some sixty days or less prior to the time this prosecution was commenced. Once the State was alerted, its investigation moved promptly and charges were filed on May 20, 1983. Defendant contends that he was *138 prejudiced because two witnesses, John Briggs and Michael Harris, died before the case was triеd. Michael Harris, the alleged coconspirator, died of gunshot wounds approximately one year before the charges were filed. John Briggs died shortly after the charges were filed, but prior to trial. John Briggs, a former employer of the defendant, was the former owner of one of the properties and the defendant owed him money at the time the Chestnut Street property was destroyed. Briggs received a substantial portion of the insurance proceeds, as we have stated above. That evidence came in through the testimony of his son, Robert Briggs. Defendant does not allege that John Briggs had any information as to the conversations between the defendant and Robert Briggs, or that John Briggs could have disputed any of the State’s evidence at trial. Michael Harris, on the other hand, allegedly conspired with the defendant and set fire to both properties at defendant’s request. He was an important witness both for the State and for the defense, depending on his testimony. There is no indication, however, that the State was in any way responsible for his death or that the State deliberately delayed prosecution until after his demise. Upon the facts before us, we hold that defendant was not denied due process by the preindictment delay.
Defendant next contends that his “uncorroborated” confession is not sufficient to establish the elemеnts of the offenses charged against him, in the absence of sufficient proof of the corpus delicti. In view of our disposition of this case, we need not reach this issue.
Defendant contends that the written instructions to the jury defining aggravated arson and the lesser included offense of arson were clearly erroneous. Instruction No. 22 attempts to set forth the elements of the crime of aggravated arson as charged in count No. 5 of the informatiоn, relating to the destruction of the Chestnut Street property. The trial court’s instruction omits the phrase of “knowingly, by means of fire or explosive,” a necessary element of aggravated arson when charged under K.S.A. 21-3719 and -3718(l)(a). In charging the jury in a criminal case, it is the duty of the trial court to define the offense charged, stating the essential elements of the crime either in the language of the statute or in appropriate language of the court. This instruсtion, omitting an essential element, was erroneous. However, it was
*139
not objected to at trial. When an instruction has not been objected to at trial, this court’s scope of review is limited to a determination of whether the instruction is clearly erroneous. An instruction is clearly erroneous when a reviewing court reaches a firm conviction that if the trial error had not occurred, there was a real possibility the jury would have returned a different vеrdict.
State v.
Maxwell,
Five of the offenses charged were related to or arose out of the alleged aggravated arson. All stand or fall upon the sufficiency of the proof of the aggravated arson charges. Count I charged conspiracy to commit aggravated arson, which is defined in the infоrmation in pertinent part as “knowingly by means of fire . . . damaging any building ... in which another person has an interest without consent of such other person . . . .” and describing the 16th Street residence. As we have already held, the evidence did not establish that another person had an interest in that property. Count II charged aggravated arson of the 16th Street residence “in which another person has an interest, to-wit: The First National Bank of Elk City . . . .” As discussed above, the evidence was insufficient to establish that offense.
Count III charged first-degree felony murder, the killing of Carl Clay “while perpetrating the felony crime of aggravated arson ... as stated in Count II of this Information which is hereby incorporated into this Count by reference . . . .” The felony upon which the charge was founded was not established by the evidence.
We are not unmindful of our prior holding that one convicted of felony murder need not be charged with and convicted of the
*140
underlying felony. See
State v. Wise,
Counts IV and V charged conspiracy to commit aggravated аrson and the aggravated arson of the Chestnut Street residence in much the same manner as Counts I and II were drafted. These counts were based upon the premise that Marysville Mutual had an interest in the property, which the evidence fails to establish. Defendant’s conviction of the offenses charged in those counts must likewise be reversed.
Defendant was charged in Count VI and convicted of theft by deception of the $4,900 he received from the insurance company. We find no direct interrelation between that conviction and the errors which pervade the others. The evidence was sufficient to sustain this conviction.
For the reasons stated, the convictions of conspiracy to commit aggravated arson (Counts I and IV), aggravated arson (Counts II and V), and felony murder (Count III) are reversed. The conviction of theft by deception (Count VI) is affirmed.