61 Mo. 276 | Mo. | 1875
delivered the opinion of the court.
The defendant was indicted and convicted of arson. The indictment is based on sec. 5, ( Wagn. Stat., 454) which designates and provides for punishment of arson in the third-, deg’ree. A number of errors have been assigned as cause for reversal of the judgment below, and they will’be briefly noticed.
I.
There is no merit in the point tha.t the indictment charges that the defendant burned “ a house or building,” these words being evidently used as terms of synonomous import, (State vs. Ellis, 4 Mo., 474) and intended to designate one and the same building; and therefore there is no uncertainty as to the allegation in reference to the subject matter of the offense — nor the charge the accused was called upon to meet. (Brown vs. Commonwealth, 8 Mass., 59; Wagn. Stat., 1090, § 27.)
II.
Mary J. Moore, the woman who was living with the defendant at the time of the burning, as his wife, was a competent witness, for the reason that a prior marriage of defendant with one Mary Cavender was proved in the most satisfactory manner by the justice of Dade county, who performed the ceremony less than two years before the trial, and, the loss of the record of the marriage having'been established, the docket of the justice clearly confirmed his statements in refer
III.
There is no just ground of coinplaint as to the instructions given for the State, or refused the defendants, those given on either side having presented the law of the case, as a whole, with sufficient and substantial clearness. The chief ground, however, of reversal on which defendant relies is the entire insufficiency of the evidence to sustain the charge, and the alleged fatal variance between the allegation in the indictment that the property burned was tliat of Mrs. Noah Adkins, and the' evidence offered in support of that allegation ; the defendant contending that the house burned, 'lie being in possession at the time of the burning, was his own house, and therefore it was not arson, even if he burned it; and upon this theory some of the defendant's refused instructions were asked.
The evidence, although for the most part circumstantial, yet pointed with great directness to the defendant as the
Were this a prosecution at common law there might be abundant authority found to sustain the idea that the tenant could not be held guilty of arson in burning a bouse of which he had the occupancy. (Holmes’ case, 2 East P. C., 1023; Bemis case, id., 1026, and cases cited.) For the distinguishing characteristic of arson at common law. is, that it is an offense immediately against the possession; and therefore if a tenant, however short his term, set lire to a house he occupied, it was not arson. But under our statutory provisions of arson, the offense, especially in the third degree, is directed not at the possession, but at tbe property of another, thus avoiding many of those “unseemly niceties” as to- possession, which formerly baffled prosecutions and enabled the guilty to escape. Under our statute even a tenant may be convicted of arson. And this was the status of the defendant towards Mrs. Noah Adkins, and she therefore had such a beneficial interest in the property as to have been able to maintain an action for its recovery against the tenant. In addition to that she had a dower interest in the premises, and was entitled to remain in possession until the assignment of her dower, and had such a possessory right as wonld, if transferred, have enabled tbe transferee to have successfully resisted- an action for the possession of the premises. This was so held in Jones vs. Manley (58 Mo., 559). No importance is to be attacked to the fact that it was not affirmatively shown upon the trial that the mansion house of Mrs.-Adkin’s deceased husband was the oue which was burned, as tbe testimony discloses that she. and her husband had resided on the premises, and in the house, for years before his death, and that she had so resided there for years subsequent to that event, aud it. does wot at all appear in evidence that her husband was the owner of any
Holding these views, the judgment must be affirmed.