Jeese v. State

Handy, J.: This was an indictment in the circuit court of Carroll county, under the 55th section of the statute of 1852, Hutch. Dig., 521, concerning slaves, free negroes, and mulattoes. The indictment charges that the plaintiff in error, “ on the 5th day of June, 1854, with force and arms, in the county aforesaid, did then and there wilfully and feloniously set fire to and burn up and consume with said fire a certain barn situate in said county,” etc., “ contrary to the statute in such cases made and provided,” etc. The accused pleaded not guilty, and on the trial a verdict and judgment of conviction were rendered, from which the case is brought here. The first and principal ground of error alleged is, that the indictment is essentially defective in not charging that the act of burning was committed maliciously, and, therefore, that no judgment can be pronounced upon or supported by it, and it must be quashed. The offense charged is founded upon the statute above mentioned, which provides, that “if any slave shall be guilty of burning any dwelling-house, store, cotton-house, gin or outhouse, [748] barn or stable, or shall be accessory thereto, every such slave shall, on conviction, suffer death.” It is not denied on the part of the state that malice is of the essence of the crime of arson at common law, and that the same ingredient must enter into offenses of house-burning created by statute. But it is insisted that in the latter class of cases it is sufficient to charge the offense in the indictment by the terms used in the statute. While this is true as a general rule, we apprehend that it only applies where the description of the offense in the statute, taking into consideration its nature and the natural and legal import of the terms used in designating it, is such as to convey a certain, clear, and full idea of the offense intended to be created, and to embrace every ingredient necessary to constitute it, though the words employed be not the same as would be required in indictments for similar offenses at common law. In such a case no prejudice can be done to the accused by following the words of the statute. But if the words used in the statute do not, in view of the nature of the offense and the recognized principles of law, describe the offense so as to convey to the mind a full and clear idea of every thing necessary to constitute the crime, in such case the full measure of the offense must be charged, by the use of such words as are necessary and proper under established rules of law to characterize it. The difference is simply that between offenses which are fully and clearly defined in the statute and such as are described generally. In the former, the description contained in the statute is sufficient; in the latter, the offenses must be charged agreeably to the rules of the common law. It depends upon the nature of the offense and the terms in which it is described in the statute, whether the one or the other of these rules will apply to the particular case. Whar. Am. Cr. Law, 132, and cases cited. In the present case, it is manifest that the words used in the statute do not show any thing which, as described, it can be supposed the legislature intended to punish. No term is employed conveying the idea of malice or criminal intent; and yet it is obvious that it was not intended to punish the mere burning of the houses enumerated, without it should be done with a [749] malicious intent. It is plain, therefore, that the legislature have not adverted to the full measure of the offense, and that it was not intended to do so, but to provide generally for its punishment, leaving the proper description of it to be supplied according to the settled rules of law when persons should be charged under the statute. We are, therefore, of the opinion that the statute does not dispense with the averment of malice, and that the indictment without such averment showed no offense in law. The next question is, whether the plaintiff in error, after having pleaded in bar to the indictment and made no question as to its sufficiency in the court below, can avail himself of a fatal defect in it in this court, and have it quashed. This point was decided in Kirk v. State, 13 S. & M., 407, and we think correctly. We think it well settled that every error in substance, in charging the offense, which would have been fatal to the indictment on general demurrer or on motion in arrest of judgment, may be urged in error and is ground for a reversal; for otherwise this court would be called on to pronounce judgment against a party who is not charged with any offense in law. The cases of Loper v. State, 3 How., 429, and Brantley v. State, 13 S. & M., 468, are urged by the attorney general as opposed to this view. But there is no conflict. The case of Loper holds that the accused may waive the right to a copy of the in-indictment and of the special venire secured to him by law, and the case of Brantley holds that exceptions to the organization of the grand jury will not be entertained in this court after plea of not guilty and conviction in the court below; and the principle held in both cases is, that the objections will be considered as waived, if not made in the court below; but these are questions pertaining rather to the regularity and formality of the proceeding than to its substance and indispensable requisites. Here the error is radical and fatal to the conviction. It is nothing less than a judgment of death against an individual for an offense, which, as charged, is no crime in law; and if, the judgment were affirmed, this court would have to pronounce judgment of death anew against him, when no crime is alleged against him. It appears to us, therefore, clear, that in cases like this it is proper to examine the indictment, and [750] though not questioned in the court below, if it appear to be fatally defective in substance, that it should be quashed here. The judgment is therefore reversed, the indictment quashed, and the prisoner ordered to be kept in custody for a new indictment.