State v. Stringer

63 So. 270 | Miss. | 1913

Cook, J.,

delivered the opinion of the court.

The indictment in this case, omitting the formal parts, is as follows: “That Cooper Stringer on the-day of January, 1911, in Simpson county, aforesaid, a certain dwelling house then and there being the property of Albert Herrington, and then and there being occupied as such, by human beings, to wit, Cooper Stringer and members of Ms family, then and there, did willfully, felon-iously, and maliciously set fire to in the nighttime, and the same dwelling house then and there willfully, feloniously, and maliciously did bum. . . . That Cooper Stringer on the-- day of January, 1911, in Simpson county aforesaid, a certain dwelling house then and there being the property of one Albert Herrington, and then and there being occupied as such by human beings, to wit, Cooper Stringer and members of his family, then and there did willfully, feloniously, and maliciously set fire to in the daytime, and the same dwelling house then and there being, then and there feloniously, willfully, and maliciously did burn.”

The following demurred was interposed by defendant and sustained by the court:

“Comes the defendant in the above-styled cause, Cooper Stringer, in his own proper person, and by attorney, and prays the judgment of the court if he shall be required to plead further thereto, and in support of this demurrer assigns the following causes for demurrer:

“ (1) Because neither the first nor second count in the indictment is sufficient in law to warrant a conviction or uphold a judgment of the court upon a verdict of a jury convicting the defendant of the offense attempted to be charged in the indictment..

• “(2) Because the indictment fails to charge in the first count that human beings, were lodging, staying, and residing at night in the house alleged to have, been set fire to and burned.

“(3) Because the indictment, fails to charge in the first count that human beings usually stayed and lodged, in the nighttime, in the house alleged to have been fired and burned.

“ (4) Because the indictment in the first count fails to charge that there was a human being or human beings, in the house at the time the same is alleged to have been fired and burned.

“(5) Because the charge attempted to he alleged in the indictment is one highly penal by statute, and the language of the statute is not pursued or employed in describing the offense in the first count.

“(6) Because the indictment in the first count fails to set forth with sufficient clearness to charge the offense of burning a dwelling house in which human beings usually stayed and lodged at night, and in which human beings were at the time, to charge the offense of arson.

“(7) Because the indictment, under the head of first and second counts, attempts to charge the defendant of two separate and distinct' offenses, provided for in separate and distinct sections of the statute, for one and the same alleged crime.

“ (8) Because the indictment in the second count fails to charge that human beings usually stayed and lodged and resided at the time of the alleged firing and burning, in the daytime.

“ (9) Because the indictment in the second count fails to charge with sufficient clearness that a human being or human beings were in the house, or usually stayed, lodged, and resided in the house, in the daytime, at the time of the alleged firing and burning.

“ (10) Because the indictment in the second count fails to pursue or employ the language of the statute in attempting to charge the offense of burning a dwelling in the daytime in which human beings stayed, lodged, and resided, and fails to employ language sufficient to charge with such clearness the said offense attempted to be charged.

“ (11) Because the indictment in neither the first nor the second count employs language sufficient to set forth with certainty and clearness the charge of either burning the dwelling house in the daytime or the nighttime, with sufficient circumstances connected therewith to make a charge under the statute either for arson in first count or arson in the second count.

“(12) And for other reasons to be assigned on the hearing of this demurrer.”

From the judgment sustaining the demurrer the state appeals.

Taken as a whole, the grounds of demurrer amount to about this: (a) The indictment does not follow the precise words of the statute; (b) the indictment does not allege that the house burned was a house in which human beings resided and slept at the time it was burned; (c) the indictment charges two separate and distinct crimes.

We are of opinion that there is no merit in either of the grounds assigned by the demurrer, and the court erred in sustaining the same. The indictment avers that the house in question was a “dwelling house,” occupied by the owner and his family. A “dwelling house” is a house in which human beings “usually stay, lodge, or reside.” 3 Words and Phrases, pp. 2285-2295.

Reversed and remanded.