State v. Fry

39 S.W. 231, 98 Tenn. 323

• Court: Tennessee Supreme Court
• Decided: March 5, 1897
• Status: Published

Opinions

Wilkes, J.

Defendant was indicted at the September term, 1894. There were two counts in the indictment. The first charged the defendant with burning a barn, the property of Stroud, in the possession of Bailey. The second charged him with burning the dwelling house of Stroud, in the possession of Bailey.

The verdict of the jury was returned at the January term, 1896, and was, in form, that they found the defendant guilty of arson, as charged in the indictment, and sentenced him to five years in the State penitentiary.

On appeal to the Supreme Court the judgment rendered upon this verdict was reversed and the case remanded for a new trial. A mistrial was had at the May term of the Court, and at the September term another trial was had, and the jury returned a verdict that the defendant was guilty of barn burning, as charged in the indictment, and he was sentenced to two years in the penitentiary, and he has again appealed.

It is insisted that the verdict of arson, on the first trial, without any special finding upon the charge of barn burning, was equivalent to an acquittal upon the latter charge, and that whether he set up the former acquittal by plea or not, he could not, on the last trial, be convicted of barn burning.

If we concede the premises that he has once been acquitted in the same case of the charge of barn burning, we do not think it absolutely necessary that he should set this up by plea, inasmuch as it appears fully to the Court in the course of the same prosecution. But, the question is, was the verdict of the first trial equivalent to an acquittal of the charge of barn burning ? That verdict found him guilty of arson, in general terms, and did not specify whether of the barn or dwelling. It was applicable, and may have been applied, to either. Originally, the crime of arson, at common law, was applicable only to dwellings. By statute, however, its scope has been enlarged until it embraces not only dwellings, but outhouses as rvell. In this case the dwelling and barn were burned in the same fire, at the same time, and by the same means, and the verdict, being general, was applicable to either or both. This is not similar to a charge of murder, which embraces within it the different degrees of homicide, and where the conviction for a lower grade necessarily carries with it an acquittal of the higher offense. We do not think, therefore, that the first verdict, by its terms or by implication, is an acquittal of either offense, but, on the contrary, was a conviction, upon both or either, the sentence in that case being five years, and within the penalty prescribed in each statute. Upon the case being remanded, therefore, the defendant was triable, as at first, upon the indictment as a whole. Upon the latter trial the finding is for barn burning, and the punishment is within the limits fixed for that offense. Upon the merits of the case, the record shows a motive, with threats and malice on the part of defendant. There is also evidence as to similarity of footprints. The only real defense set up is that of an alibi, and this is attempted to be made out by Williams. Defendant, however, admits that he was, during the whole night of the fire, in company with Hickerson. Hickerson has already been found guilty, by this Court, of the same offense, and is now in the penitentiary.

Suffice it to say, we do not consider the alibi as made out, and the judgment of the Court below must be affirmed.