Pitts v. State

DAVIDSON, Judge.

This is a conviction for attempt to commit the crime of arson; the punishment, eighteen months in the penitentiary.

The count in the indictment upon which this conviction rests charged, in effect, that appellant wilfully attempted to set fire to and burn the house of Claude Ellis.

The elements of the offense of arson become an integral part of the offense here charged, because the attempt must be such as, if consummated, the offense of arson would have been committed.

Arson is the wilful burning of a house, under certain circumstances (Chapter One, Title 17, P. C.). These are: (a) The burning of the house of another, (b) the burning of a house by the owner (Art. 1312, P. C.), and, (c) the burning of a house by a part owner (Art. 1313, P. C.). As to the first, the offense is complete upon the wilful burning of the house, without reference to its location or surroundings; as to the second, the owner is guilty of arson only under certain circumstances (Art. 1312, P. C.); as to the third, the statute says merely that one part owner of a house may not burn it (Art. 1313, P. C.).

There is no statute making clear whether a burning by part owner is a burning of the house of another or a burning of a house by owner.

The instant indictment charged that appellant attempted' to burn the house of Claude Ellis.

The state’s case must stand or fall upon the allegation that Claude Ellis was the owner of the house, the burning of which was attempted.

It is the appellant’s contention that the facts wholly fail to establish this allegation.

It is the state’s contention that the facts are sufficient to so show but that, if they do not, the facts are sufficient to show that Claude Ellis was a part owner of the house with the appellant and therefore the allegation of the indictment is sufficient to support appellant’s conviction as part owner for attempting to burn the house.

The conviction rests, alone, upon the testimony offered by the state.

The facts abundantly establish that appellant attempted to burn the house. The sole issue is whether the facts show that she was the owner or part owner thereof. The house was a four room frame dwelling occupied by Claude Ellis and appellant. The record does not reflect who held the legal title thereto, or by what authority appellant and Claude Ellis occupied the same — that is, as tenant or otherwise.

Claude Ellis did not testify because, according to facts certified as true in a bill of exception, he was the common law husband of appellant and the state was thereby precluded from calling him as a witness.

There is an absence of any testimony showing either that Claude Ellis was in or about the house at the time of the alleged offense or when he was last seen at the house.

One witness testified that Claude Ellis had resided in the house for twenty-two years and that appellant had resided there for a little over two years. The witness further testified, “No one else lives in that house but the defendant and her husband . . . She and Claude Ellis run that house.” Another witness testified, “Angland (appellant) has lived at that address about two years. She lived there with Claude Ellis . . . Ángland’s house has a fence around it.”

A member of the Houston fire department, called to answer the fire alarm, testified, “This defendant is the one that said it was her house; she could burn it if she wanted.” Another member of the fire department testified, “She (appellant) said that she could burn the house down if she wanted to; it was hers.”

Under these facts it may be said that the house was occupied by appellant and Claude Ellis, her husband, as their place of residence. She (appellant) claimed the house was hers. There is an absence of any testimony showing that Claude Ellis was the actual owner of the house, or that he had any right, title, or interest in and to the possession or occupancy thereof superior to that of the appellant.

In the crime of arson, ownership of the burned house is deemed to be in the person having the right of possession thereof. Actual ownereship or legal title is not the criterion. 4 Tex. Jur., p. 807, Sec. 10; Simms v. State, 114 Tex. Cr. R. 51, 24 S. W. 2d 39; Morgan v. State, 114 Tex. Cr. R. 478, 22 S. W. 2d 461; Banks v. State, 143 Tex. Cr. R. 61, 157 S. W. 360; Hamilton v. State, 145 Tex. Cr. R. 78, 165 S. W. 2d 737.

Under the facts stated, it is apparent that the testimony fails to show that Claude Ellis was the exclusive owner of the house attempted to be burned. The most favorable construction to be given the facts is that Claude Ellis and appellant were jointly occupying the house as husband and wife and were, therefore, part owners thereof, within the meaning of the arson statute.

The question decisive of this case, then, is whether a conviction for arson against a part owner may be predicated upon an indictment alleging the burning of the house of another part owner, without alleging that the burning was by a part owner. This appears to be a question of first impression in this state.

In the case of Mulligan v. State, 25 Tex. App. 199, 7 S. W. 664, we find this expression:

“But an indictment against an owner or part owner for burning his own house must allege ownership in the accused, and the particular facts which may bring him within the exceptions as amenable to prosecution.”

In Kelley v. State, 44 Tex. Cr. R. 187, 70 S. W. 20, the Mulligan case was cited as sustaining the proposition that the offense of arson may be committed by a tenant in possession in the burning of the house of the owner.

In Daniels v. State, 117 Tex. Cr. R. 18, 35 S. W. 2d 730, a conviction was sustained for the offense of attempt to commit arson. There, the indictment alleged joint ownership of the house in the accused and another. The Mulligan case was there cited as sustaining the proposition that the exception contained in Art. 1312, P. C., relative to the burning of a house by owner, should have been set forth in the indictment. In that connection, it was pointed out that the allegation in the indictment that the house was situated in a city met this requirement. The Daniels case appears to be authority for the proposition that one joint owner may be guilty of the offense of arson in the burning of a house situated within a city.

In Webb v. State, 75 S. W. 2d 109, 127 Tex. Cr. R. 201, the holding above mentioned in the Mulligan case was expressly overruled.

With the overruling of the rule announced in the Milligan case, there appears no authority presently existing in this state setting forth the elements necessary to be alleged in an indictment in order to charge the offense of arson by a part owner.

The statute, Art. 1313, P. C., makes it unlawful for a part owner of a house to burn it. Obviously, therefore, to charge a violation of that statute, the indictment must, among other things, charge the burning of a house by part or joint owner.

The indictment in the instant case, not having so charged, is, therefore, insufficient to support a conviction for an attempt to commit arson, upon facts showing an attempt by a part owner to burn the house.

From what has been said, it follows that the judgment of conviction should be reversed and the cause remanded. It is so ordered.

Opinion approved by the court.