Simmons v. State

129 N.E.2d 121, 234 Ind. 489, 1955 Ind. LEXIS 166

• Court: Indiana Supreme Court
• Decided: October 5, 1955
• Docket: 29,220
• Status: Published

Opinions

Emmert, C. J.

This is an appeal from a judgment entered on a finding made by the court that the appellant was guilty of arson in the first degree as charged in an affidavit, upon which he was sentenced to the Indiana State Prison for a period not less than two nor more than fourteen years. The error assigned is the overruling of appellant’s motion for a new trial.

The essential part of the affidavit charging the crime is as follows:

“RUSSELL SHELTON being duly sworn upon his oath says that HARVEY SIMMONS on or about the 4th day of June A.D. 1954, at said County and State as affiant verily believes did then and there unlawfully, feloniously, wilfully and maliciously set fire to and burn a certain dwelling house then and there situate, of the value of Fifty Dollars ($50.00) which was then and there the property of another, to-wit: Alex Scott, then and there being contrary to the form of the Statute, in such cases made and provided, . . .”

The evidence, when viewed most favorably to the state, discloses that Elwood Scott owned a house trailer which was on wheels. In April or May of 1954, one Eddie Stuckey, who was a tenant of a Mrs. Ross, told Scott, the owner of the trailer, that he could move it on the land leased by him across from the Water Works Road in Vanderburgh County. No rent was promised or paid, Stuckey saying that “it was all right to be down there, people were stealing his corn.” It was pulled there by an automobile, after which the owner took out the wheels and placed cement blocks under the chassis. The owner was living and sleeping in it at the time it burned, although he was not present when the fire occurred at about 1:00 A.M. the 4th day of June, 1954. The owner had constructed the trailer himself on an automobile chassis. He stated it was too heavy, so he set it on concrete blocks. It had a hitch to attach to an automobile and was 8 by 15 feet in dimensions.

The owner was no more than a tenant at sufferance. Carger v. Fee (1894), 140 Ind. 572, 580, 39 N. E. 93; Soroka v. Knott (1929), 90 Ind. App. 649, 653, 168 N. E. 703.¹

Appellant insists that there was no evidence tending to prove the corpus delicti independent of the confession of appellant. With this we agree. Exclusive of the confession, there was no evidence as to what caused the fire. “Proof of the corpus delicti means proof that the specific crime charged has actually been committed by someone. Parker v. State (1950), 228 Ind. 1, 6, 88 N. E. 2d 556, 89 N. E. 2d 442, supra.” Dennis v. State (1952), 230 Ind. 210, 216, 102 N. E. 2d 650.

“The rule seems to be well established generally that an extra-judicial confession will not be admitted in evidence and a conviction will not be upheld until and unless the corpus delicti has been established by clear proof independent of the confession. Gaines v. State (1921), 191 Ind. 262, 268, 269, 132 N. E. 580; Hunt v. State, supra; Messel v. State (1911), 176 Ind. 214, 219, 95 N. E. 565; Griffiths v. State (1904), 163 Ind. 555, 558, 559, 72 N. E. 563; 1 Wharton’s Criminal Law (12th Ed.), §§359, 360; 20 Am. Jur., Evidence, §484, 22 C. J. S., Criminal Law, §839, pp. 1471-2; 23 C. J. S. Criminal Law, §916b, p. 183; Underhill’s Criminal Evidence (4th Ed.), §36; Anno., 127 A. L. R. 1130, 1134.” Parker v. State (1949), 228 Ind. 1, 6, 88 N. E. 2d 556, 89 N. E. 2d 442.

“A naked confession is one which is not corroborated by independent proof of the corpus delicti. Upon such a confession made in open court, as, for example, by a plea of guilty, a conviction of any crime, and sentence may be had. But in the case of all extra-judicial confessions it is the rule that the corpus delicti must be proved by additional evidence before a conviction upon the naked confession alone will be upheld. Underhill, Criminal Evidence (2d ed.), §147.” Gaines v. State (1921), 191 Ind. 262, 268, 132 N. E. 580.² In arson, the corpus delicti is not proved by mere proof that property burned. “The law implies that the fire was the result of accident or some providential cause, rather than a criminal design, unless the evidence proves otherwise. Phillips v. State (1859), 29 Ga. 105; Stallings v. State (1872), 47 Ga. 572; State v. Carrol (1892), 85 Iowa 1, 51 N. W. 1159.” Williams v. State (1930), 90 Ind. App. 667, 677, 169 N. E. 698.³

Appellant’s motion for a new trial contends that there was a fatal variance between the affidavit and the evidence, inasmuch as the affidavit charged appellant feloniously “burned a certain dwelling house,” when the uncontradicted proof showed that it was a house-trailer that burned. The other members of the court are of the opinion that the house-trailer was a “dwelling-house” as the term is used in §10-301, Burns’ 1942 Replacement (Acts 1927, ch. 44, §1, p. 122), but I am of the opinion that the house-trailer was not a “dwelling-house” within the meaning of this section of the statute for the following reasons:

The 75th Regular Session of the General Assembly in 1927 passed a comprehensive act on arson, the first four sections making it a felony to burn various kinds of property of another, and the last clause of each section prohibiting the burning of insured property with intent to defraud the insurer. Chapter 44, Acts 1927.

Since there are no common-law crimes in this jurisdiction, McDaniels v. State (1916), 185 Ind. 245, 113 N. E. 1004; Vinnedge v. State (1906), 167 Ind. 415, 79 N. E. 353; Kleihege v. State (1934), 206 Ind. 206, 188 N. E. 786, we are concerned with what the various sections prohibited, and the material parts thereof are set forth in the note.⁴

“In construing criminal statutes, we are not concerned with what the Legislature might have done. We are concerned only with determining the legislative intent as expressed in the statute. ‘ “It is fundamental that penal statutes are to be strictly construed; that a statute in derogation of a common right and highly penal in character is only to be applied to cases clearly within its provisions; that penalties may not be created by construction, but must be avoided by construction unless they are brought within the letter and the necessary meaning of the act creating the penalty. This requires that where there is ambiguity it must be resolved against the penalty, and only those cases brought within the statute that are clearly within its meaning and intention.” Manners v. State (1936), 210 Ind. 648, 654, 5 N. E. 2d 300, 303.’ Dowd, Warden v. Sullivan (1940), 217 Ind. 196, 202, 203, 27 N. E. 2d 82, 85.” Loftus v. State (1944), 222 Ind. 139, 143, 52 N. E. 2d 488.

The words “personal property of any kind or character,” as used in the third and fourth sections of the Act, are construed under the rule of ejusdem generis, which in substance is, “that when words of specific or limited signification in a statute are followed by general words of more comprehensive import, the general words are construed to embrace only such things as are of like kind or class with those designated by the specific words, unless a contrary intention is clearly expressed. Dowd, Warden v. Sullivan (1940), 217 Ind. 196, 201, 27 N. E. 2d 82; McNamara v. State (1932), 203 Ind. 596, 600, 181 N. E. 512, and cases there cited; Yarlott v. Brown (1923), 192 Ind. 648, 653, 138 N. E. 17; Wiggins v. State (1909), 172 Ind. 78, 80, 87 N. E. 718; Nichols v. State (1890), 127 Ind. 406, 408, 26 N. E. 839; City of Jeffersonville v. Nagle (1921), 191 Ind. 70, 72, 132 N. E. 4; Marter v. City of Vincennes (1948), 118 Ind. App. 586, 590, 82 N. E. 2d 410; Chief Eagle Feather v. State (1929), 89 Ind. App. 500, 504, 167 N. E. 147; Bartles v. City of Garrett (1929), 89 Ind. App. 349, 351, 166 N. E. 437.” Short v. State (1954), 234 Ind. 17, 122 N. E. 2d 82, 85.

“Where there is nothing in the act itself to indicate that a word, or phrase, is used in a particular, or technical, sense, it is to be taken or accepted in its ordinary and popular meaning. Massey v. Dunlap et al. (1896), 146 Ind. 350, 358, 44 N. E. 641.” State v. Mears (1938), 213 Ind. 257, 259, 12 N. E. 2d 343. In order “to determine the meaning of a statute it should be considered as a whole and that all its provisions should be read together. State v. Louisville, etc., R. Co. (1912), 177 Ind. 553, 96 N. E. 340, Ann. Cas. 1914C 1284; Huff v. Fetch (1924), 194 Ind. 570, 143 N. E. 705.” Kryder v. State (1938), 214 Ind. 419, 425, 15 N. E. 2d 386. “It is a well recognized principle of construction that all of the language used in the statute will be deemed to have been intentionally used to effect the meaning of the act.” Bienz v. State (1934), 206 Ind. 482, 484, 190 N. E. 170. “ ‘It is always presumed, in regard to a statute, that no absurd or unreasonable result was intended by the legislature.’” Marks v. State (1942), 220 Ind. 9, 18, 40 N. E. 2d 108. We will not impute to the legislature an absurd result by holding that the same act could be a crime under §1, and result in a penalty of from two to fourteen years, and at the same time it could be a criminal offense under §2, with a penalty of from one to ten years, or an offense under §3 which carries a penalty of from one to three years. The Act, being criminal and highly penal, must be construed in favor of an accused, and it is quite evident that each section was intended to punish acts which were not included in other sections.

The statute on motor vehicles regulates house trailers as motor vehicles. A vehicle is defined as “Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks.” Section 47-1802(a), Burns’ 1952 Replacement.

A semitrailer is defined as “Every vehicle with or without motive power, other than a pole trailer, designed for carrying persons or property and for being drawn by a motor vehicle and so constructed that some part of its weight and that of its load rests upon or is carried by another vehicle.” Section 47-1805 (b), Burns’ 1952 Replacement.

A house car is defined as “Every vehicle with or without motive power equipped exclusively for living quarters for persons traveling upon the highways.” Section 47-2402 (t), Burns’ 1952 Replacement.

Under Section 47-2601, Burns’ 1952 Replacement, before any house car shall be operated or driven on any public highway the owner must register the same with the department, for which, under §47-2801, Burns’ 1952 Replacement, a fee of $10.00 is collected.

Under the specific charge of the affidavit, and under the first degree arson section of the statute (§10-301, Burns’ 1942 Replacement), it was necessary for the state to prove beyond a reasonable doubt that the place burned was both a dwelling and a house, which is a building. “Words and phrases shall be taken in their plain, or ordinary and usual, sense . . .” Section 1-201, Burns’ 1946 Replacement. A house, in common understanding, is a building, and this court has twice so decided. Ford v. State (1887), 112 Ind. 373, 378, 14 N. E. 241, 244; Schilling v. State (1888), 116 Ind. 200,

204, 205, 18 N. E. 682, 684. In the latter case, in deciding an uncovered wagon was not a house, it was said, “In the ordinary and most common use of the word, house means an ordinary building for the use of a family—a dwelling-house—but that is not the only definition of the word, either in common parlance, or in the law. Both recognize such houses as packinghouses, smoke-houses, ice-houses, banking-houses, mill-houses, etc., and, in general business-houses. In such cases, the word house is the equivalent of building. Ford v. State, 112 Ind. 373, 378.”

A house is a building designed for the habitation and residence of men. Black’s Law Dictionary (4th Ed.).⁵ This trailer never became a building. Its owner had it on another tenant’s land on a day-to-day basis, without payment of rent. The owner said he was going to put the wheels back under it. It was never attached to the real estate, but was always a movable chattel. It would not be a building one day, and a vehicle the next day when the owner chose to move it, as he had the right and intended to do. Proof that the owner lived in his trailer did not make it a building, and if it was not a building, it was not a house any more than a tent is a building, or a truck equipped for living and sleeping is a building, or a wagon which could be used for the same purpose is a building.

It was not the duty of the appellant to prove the trailer was not a building, nor was it his duty to prove any fact tending to prove it was not a dwelling house. The state did not prove how many cement blocks were temporarily put under it when the wheels were taken off, nor did it prove the cement blocks were below the surface of the ground, or joined together with mortar, nor did it prove who owned them, nor did the state prove whether they extended underneath the entire edge of the outer frame. It was not attached to the ground as much as a tent would have been. There was an entire failure of any proof whatever to show that this trailer was a building of any sort whatever.

Nor is any decision on any insurance policy persuasive in determining this appeal, for the insurance contract fixes the rights of the parties in an insurance dispute, and since the contract is drawn by the insurer, under the well recognized law of contracts that ambiguities are resolved against the party who drafts the instrument, a liberal construction is given to protect the insured; whereas, under the well established rule governing criminal cases, the construction must be in favor of the accused and against the state where there is any room for construction at all, both under the statute creating the offense, and under the indictment or pleading charging the crime.

It is not necessary to decide in this appeal under what circumstances, if any, a house trailer might lose its character as a vehicle, and become a dwelling house, which must be a dwelling building, under the first section of the arson act. The evidence in this appeal is all one way to the effect that this house trailer was still a vehicle, and under every recognized rule for construction of criminal statutes, the burning of such a vehicle was within the statutory prohibition of the burning of “Any other personal property of any kind or character whatsoever not herein specifically named” under the third section of the arson act, §10-808, Burns’ 1942 Replacement. If the legislature wishes to make the burning of a house trailer, which is still a vehicle and not a building, arson in the first degree, it should specifically say so.

Judgment reversed and new trial ordered.

Bobbitt, Landis, Achor and Arterburn, JJ., concur in the reversal for failure of the state to prove the corpus delicti by independent evidence, but dissent from the reasoning that a house-trailer is not a dwelling-house.

1 . “The mere permission to use land without any provision for rent could, at most, amount to a tenancy by sufferance, if, indeed, it would amount to that, and where one in possession repudiates the relation of tenant to his landlord, no notice to quit is necessary. Cargar v. Fee (1894), 140 Ind. 572, 580, 39 N. E. 93.” Soroka v. Knott (1929), 90 Ind. App. 649, 653, 168 N. E. 703.

2 . “In Indiana the independent evidence alone need not be sufficient to establish the corpus delicti beyond a reasonable doubt, but there must be some evidence of probative value aside from the confession to prove that the crime charged was committed.” Parker v. State (1949), 228 Ind. 1, 7, 88 N. E. 2d 556, 89 N. E. 2d 442.

3 . “Inasmuch as the corpus delicti consists of two elements: (1) That a certain result occurred, in this case the burning of a building; and (2) that some person is criminally responsible for the act, Carlton v. People, 150 Ill. 181, 37 N. E. 244; 14 Am. Jur., Criminal Law, sec. 6, it may be seen that the independent evidence tends to establish only that a building burned. There is nothing, save the confession alone, which suggests or tends_ to corroborate the element that some person wilfully fired the building. Therefore, in the absence of any evidence independent of the confession clearly showing a crime to have been committed by some person and in the further absence of evidence^ of other facts or circumstances so fully corroborating the confession as to show the commission of the offense beyond a reasonable doubt, the rule that the corpus delicti cannot be proved by the confession of a defendant alone must be applied.” People v. Lueder (1954), 3 Ill. 2d 487. 121 N. E. 2d 743. 744.

4 . “Any person who wilfully and maliciously sets fire to or burns, or causes the setting of fire to or the burning, or who aids, counsels or procures the setting of fire to or the burning of any dwelling-house, rooming-house, apartment-house or _ hotel, finished or unfinished, occupied or unoccupied, or any kitchen, shop, barn, stable, garage or other outhouse, or other building that is part or parcel of any dwelling-house, rooming-house, apartment-house or hotel, or belonging to or adjoining thereto, finished or unfinished, occupied or unoccupied, such being the property of another; . . . shall be guilty of arson in the first degree and, upon conviction thereof, shall be imprisoned in the state prison not less than two [2] nor more than fourteen [14] years.” Section 10-301, Burns’ 1942 Replacement.

“Any person who wilfully and maliciously sets fire to _ or burns, or causes the setting of fire to or burning, or who aids, counsels or procures the setting of fire to or the burning of any barn, garage, stable or other building, finished or unfinished, occupied or unoccupied, not a part or parcel of any dwelling-house, rooming-house, apartment-house or hotel, _ or any shop, storehouse, warehouse, factory, mill or other building, or_ any church, meeting-house, court-house, workhouse, school, jail or other public building or any bridge, finished or unfinished, occupied or unoccupied; such being the property of another . . . shall he guilty of arson in the second degree and shall, upon conviction thereof, be imprisoned in the state prison not less than one [1] nor more than ten [10] years.” Section 10-302, Burns’ 1942 Replacement.

“Any person who wilfully and maliciously sets fire to or burns, or causes the setting of fire to or the burning, or who aids, counsels or procures the setting of fire to or the burning of any barrack, cock, crib, rick or stack of hay, corn, wheat, oats, barley or other grain or vegetable product of any kind; or any field of hay, straw, grass or grain of any kind, cut or uncut; or any pile of coal, wood or other fuel; or any pile of planks, boards, posts, rails or other lumber; or any street-car, interurban car, railway car, boat, wharfboat, water-craft or vessel, dirigible balloon, airplane of any kind or character, automobile or other motor vehicle,_ finished or unfinished; or any reaping machine, mowing machine, threshing machine, separator, clover huller, plow, cultivator, or any other agricultural or farming implement, vehicle, or machinery, finished or unfinished; or any other personal property of any hind or character whatsoever not herein specifically named, such property being the property of another; . . ._ shall be guilty of a felony and shall, upon conviction thereof, be imprisoned in the state prison not less than one [1] nor more than three [3] years.” Section 10-303, Burns’ 1942 Replacement. (Italics added.)

“Any person who wilfully and maliciously sets fire to or burns, or causes the setting of fire to or the burning, or who aids, counsels or procures the setting of fire to or the burning of any goods, wares, merchandise or any other chattels or personal property of any kind or character whatsoever; such being the property of another, . . . shall be guilty of a felony and shall, upon conviction thereof, be imprisoned in the state prison not less than one [1] nor more than three [3] years.” Section 10-304, Burns’ 1942 Replacement.

5 . “DWELLING HOUSE. A building inhabited by man.

“It must be a permanent structure; 1 Hale, Pl. Cr. 557; 1 Russ. Cr. 798; must be inhabited at the time; 2 Leach 1018, N. State v. Warren, 33 Me. 30; Ex parte Vincent, 26 Ala. 145, 62 Am. Dec. 714; Com. v. Barney, 10 Cush. (Mass.) 479; People v. Cotteral, 18 Johns. (N. Y.) 115; Com. v. Posey, 4 Call (Va.) 109, 2 Am. Dec. 560; Scott v. State, 62 Miss. 782. ...” 1 Bouvier’s Law Dictionary (Unabridged 3rd Rev.) p. 962.