O'Daniel v. State

TOWNSEND, J.

— Appellant was indicted for arson. §2260 Burns 1914, Acts 1905 p. 584, §371. He was tried by the court and found guilty, fined $1,000, and sentenced.

The substance of the indictment necessary to be considered in this opinion is that appellant on December 10, 1916, did set fire to and burn a certain building used for residence, manufacturing and commerce, known as 122 E. Ohio Street, in the city of Indianapolis; that the building was of the value of $50,000, and was the property of Samuel E. Rauh; that the damage done to the building by the burning was $500.

The questions arise on motion for a new trial: (1) Error in permitting evidence .of insurance and proof of loss concerning certain personal property which appellant had in the building. (2) That the evidence does not show in dollars and cents what damage was done to the building, and therefore did not authorize a fine of $1,000. (3) That the ownership and value of the building, on December 10, 1916, is not shown by the evidence.

1. The evidence shows that in certain rooms of this building appellant had an engraving establishment; that on December 10, 1916, a fire occurred, which de~ stroyed the personal property belonging to appellant. It is not clear from the evidence that there was any burning of the building; but if this were the only question presented as to the sufficiency of the evidence, it would be difficult to hold that there was not some evidence from which the court could infer that there was some burning of a part of the building in question. The state should show clearly, under the indictment here, that there was a burning of the building: a burning of that which was a part of the structure that belonged ■to the real estate, and not appellant’s personal property or his trade fixtures in the building, which he had a right to remove.

But appellant presents a further question that is very clear from the record. At the outset of the evidence there was a stipulation as follows:

“It is hereby stipulated and agreed by the parties herein that a certain building situated in Marion county and used for the purpose of residence, manufacturer and commerce, commonly known as 122 E. . Ohio street in the city of Indianapolis, Marion county, Indiana, was of the value of Fifty Thousand Dollars and was the property of one Samuel E. Rauh.”

2. This is the only evidence of the ownership and value of the building. It will be observed that this stipulation does not fix any time of ownership. For aught that appears from the evidence, appellant himself may have been the owner of the building on December 10, 1916. He is charged here with burning the building of another. Therefore the lack of evidence as to the ownership and value of the building at the time in question is fatal, and for this reason the judgment must be reversed.

3. Another question presented by appellant is that the court erred in permitting evidence concerning insurance which appellant had on his personal property in his engraving business, because appellant says that the arson statute provides that it shall be a crime to burn one’s own property to defraud an insurance company, and, that not being the charge here, this evidence proved a different and distinct crime. This evidence was competent to show motive.

Appellant’s other contention is that, there being no evidence of the damage to the building, the court was not authorized to inflict a fine of $1,000. Appellant bases his contention upon decisions of this court. The first one being the case of Ritchey v. State (1844), 7 Blackf. 168; the second being Kenningham v. State (1889), 120 Ind. 322, 22 N. E. 313. The case in the 7th Blackford, supra, was decided under §25, chapter 53, R. S. 1843, and the penalty then was imprisonment and fine “not exceeding double the value of the property destroyed.” The 120th Indiana, supra, turned on the proposition of an attempt to burn, and was under the acts of 1881 (§1927 R. S. 1881). The proposition was that the statute as then worded did not provide for an attempt to burn. At the next session of the legislature after that decision, the act was amended (Acts 1891 p. 402). This act, with a few enlargements and changing of the wording as to the things burned or attempted to be burned, is our present act. §2260 Burns 1914, supra. The act now is: “Whoever wilfully and maliciously burns or attempts to burn any dwelling house. * * * the property so burned or attempted to be burned, being of the value of twenty dollars or upwards, and being the property of another, or being insured against loss or damage by fire, and the burning or attempt to bum being with intent to prejudice or defraud the insurer, is guilty of arson, and, on conviction, shall be imprisoned in the state prison not less than two years nor more than twenty-one years, and fined not exceeding double the value of the property burned or attempted to be burned; and' should the life of any person be lost thereby, such offender shall be deemed guilty of murder in the first degree, and shall suffer death or be imprisoned in the state prison during life.”

4. We understand appellant’s point to be that, unless there is destruction of the building to the extent of $20 worth, the crime of burning is not made out. We ' hold that the crime of burning is made out if any part of the building is burned, and that it is only necessary that the value of the thing be in excess of $20, not the damage by the burning. We also hold that it is necessary to show some burning of the structure. A burning, however slight, would be sufficient. The amount in dollars and cents of the damage done is immaterial.

5. As the law now stands, the fine may be double the value of the structure, subject always, however, to §16 of the Bill of Rights (Art. 1, §16, Constitution of Indiana), against excessive fines. Therefore, the allegation in the pleading that $500 worth of damage was done is surplusage under the present statute. It would be sufficient to show that some burning was done. As we said before, it is difficult to tell from the evidence that there was any burning of anything other than appellant’s personal property and trade fixtures. But, however this may be, there is a total failure of proof of the ownership and value of the building at the time of the fire.

The finding is therefore not sustained by sufficient evidence, and the judgment is reversed, with instructions to grant a new trial.