Carter v. State

Lumpkin, P. J.

Upon an indictment against H. B. Carter, D. H. Moody, F. Herrington, and Jim Moody, charging them with the crime of arson, Carter was separately tried and convicted. His bill of exceptions alleges error in overruling a demurrer to the indictment, and in refusing to sustain a motion for a new trial. We will undertake a brief discussion of the material questions thus presented.

1. The indictment charged the wilful and malicious burning of “a certain freight warehouse,” the property of the Southern Railway Company, “the same being then and there an outhouse.” The point made by the demurrer was that the indictment failed to allege whether or not the house alleged to have been burned was in a city, town or village. The decision of this court in Smith v. State, 64 Ga. 605, practically settles this question. It was there held, that '“whether the outhouse burnt be in a city, town or village, or not, does not affect the legal character of the offense. It affects the punishment only.” Accordingly, a ruling of the trial court refusing to exclude testimony on the ground that the indictment failed to allege that the outhouse was not in a city, town or village, was sustained.

2. The next- question for determination is whether or not the structure burned was a “house” within the meaning of section 136 of the Penal Code, defining the offense of arson. The evidence shows that the body of a freight-car had been taken off the wheels and placed near the railway-track at a station; that it was supported upon permanent posts, and that a platform, to be used in transferring freights to and from the car body, had been attached to the same. It further appeared that the structure thus located was used as “a freight warehouse” by the railway company in precisely the same manner as if it had been an ordinary warehouse built for this identical purpose. In view of these facts, we have no difficulty in holding that the structure in. question was a “house,” and accordingly, we approve the instruction to this effect given by the trial judge to the jury. That the structure with which we are now dealing was not in shape like an ordinary house, or that a portion of the same had been formerly used as a movable car, does not prevent it from being, within legal contemplation, a house. It was certainly no longer a car; and, having all the elements of permanency, and being adapted to the uses for which a warehouse is suitable, we see no reason why it should not be treated as a structure coming within the protection of the statute above cited. See, in this connection, Williams v. State, this term, 105 Ga.

3. As will have been observed, the indictment alleged that this structure was an “outhouse.” There was no evidence showing that the Southern Railway Company had or owned any other building at this station; and counsel for the accused thereupon insisted that the house in question could not, in legal contemplation, be an “outhouse,” and accordingly, that there was a fatal variance between the allegations of the indictment and the proof. It is true that the word “outhouse” primarily means a building adjacent to a dwelling-house and subservient thereto, but distinct from the mansion itself. See 2 Bouv. Law Dic. 341; Black’s Law Dic. 859; Anderson’s Law Die. 515. After careful consideration, however, we have reached the conclusion that the word “outhouse,” as used in sections 136, 141 and 142 of our Penal Code, as applied to a structure not located within a city, town or village, is intended to embrace a house of any description which is not a dwelling-house. In Watt v. State, 61 Ga. 66, this court held that the wilful and malicious burning of a country church was indictable under section 4379 of the then existing code, which is the same as section 141 of the present Penal Code. The status of a railway warehouse, located elsewhere than in a city, town or village, can not be legally different from that of a country church similarly situated. That all houses other than dwelling-houses, thus located, were intended to be regarded as “outhouses,” seems manifest from the provisions of section 142 of the Penal Code, which declares that “setting fire to an outhouse of another, as described in the preceding section, shall be punished,” etc.; for unless'this meaning be given to the word “outhouse” as used in section 142, we would have no penalty whatever for the offense of setting fire to a house of the kind described in the present indictment. The truth is, the prefix “out” was totally unnecessary in this connection, except for the exclusive- purpose of distinguishing dwelling-houses from other houses; but the use thereof should not, we think, be given the effect of defeating the legislative will, which clearly was to include buildings other than those which would ordinarily be understood as falling within the class designated by the word “outhouse.”

4. All of the persons named in the indictment were accused as principals. The court was requested to charge that if Carter, who was then on trial, was guilty either as an accessory before the fact or as an accessory after the fact, he could not lawfully be convicted under this indictment. The court refused to instruct the jury in the precise language of the requests presented, but did charge the jury repeatedly, distinctly and unequivocally, that the accused could not be convicted unless they were satisfied beyond a reasonable doubt that he was present at the time the arson was committed and actually participated in its. perpetration.. A mind of even ordinary comprehension could not have failed to understand, from the plain and explicit language used by the judge, that no verdict of guilty could properly be returned against the accused unless the evidence showed his guilt as a principal. The jury must have known, from the instructions given them, that no matter how intimate a connection with the crime Carter may have had, either before or after its commission, he could not be lawfully convicted of the charge brought against him unless he was present and actually participated in the burning of the house. This being so, and the evidence tending to show his guilt as a principal being very strong, we do not feel constrained to order a new trial because of the court’s refusal to give the requests above mentioned, although we do not hesitate to say it would have been the better practice so to do.

5. The court admitted, over objection of the accused, evidence of certain acts on the part of D. H. Moody and declarations immediately accompanying the same, and also a letter written by him to Herrington, all tending to show a guilty connection on Moody’s part with the crime charged in the indictment, and also to some extent implicating Carter as a participant therein. These acts were done and these declarations were made some time after the arson had been committed, and the letter was written at a still later period; but there was, independently of the conduct and sayings of Moody with which we are now dealing, and of anything contained in his letter to Herrington, much evidence tending to show there was a conspiracy to steal goods from the warehouse and burn the building, and also to establish the State’s contention that Carter was actively concerned, not only in the theft and arson, but also in a common intent and purpose on the part of the conspirators to effectuate a concealment of these crimes and shield each other from detection and punishment. In other words, there was, outside of the evidence objected to, proof authorizing the conclusion that the alleged conspiracy embraced a “criminal enterprise” the‘scope of which included larceny, arson, and concealment. There was also some evidence warranting the inference that this enterprise was still pending on the occasions-to which 'the evidence complained of as illegal related. It seems, therefore, under the decision of this court in Byrd v. State, 68 Ga. 661, that this evidence was admissible against Carter. In that case it was distinctly ruled that the acts and conduct of one accomplice during the pendency of the wrongful act, not alone in its actual perpetration but also in its subsequent concealment, were admissible against another accomplicé. This holding was doubtless based upon the idea that the criminal enterprise was still pending while the conspirators continued to be active in taking measures to prevent the discovery of the crime or the identity of those connected with its perpetration.,

6. One ground of the motion for a new trial complains that the judge erred in refusing to inquire whether or not any of the panel of jurors put upon the accused were stockholders in the Southern Railway Company or were related to such stockholders. As it was not made to appear that any juror having such a disqualification was in fact upon the panel, this ground is obviously without merit.

7. The only remaining ground of the motion for a new trial which need be noticed is one alleging partiality on the part of a juror. This ground was supported by evidence going to show that prior to the trial the juror in question had used expressions! indicating prejudice against the accused. By way of counter-showing, however, the juror made an affidavit positively denying the use of the language imputed to him, and was in this, respect corroborated by other evidence. It therefore simply appears that, upon a conflict of testimony which would have warranted a finding either way, the judge held that the juror was not incompetent to try the accused, and certainly there was no abuse of discretion in so doing.

Judgment affirmed.

All the Justices concurring.