Wimpling v. State

Offutt, J., delivered the opinion of the Court. The appellant in these cases was indicted, tried and convicted before the court, sitting as a jury, in the Circuit Court for Anne Arundel County, of the crime of statutory arson, and from the judgment entered on the verdict in the case has appealed to this court. The indictment contained two counts. In the first, the grand jury presented that he “feloniously did wilfully and maliciously set fire to and burn, and cause to be burned a certain dwelling house, the property of Charles Heintzman, the said dwelling house then situate at Cottage Beach Grove, in the said Anne Arundel County,” and in the second, that he “feloniously did wilfully and maliciously aid, counsel and procure the burning of a certain dwelling house of the said Charles Heintzman, the said dwelling house being then situate at Cottage Beach Grove, in said Anne Arundel County,” and both concluded against the form of the statute and as at common law.

A demurrer to the indictment and each count thereof was overruled. The appellant then entered a general plea of not guilty, and the case proceeded on those pleadings until “just before the verdict” when the State “abandoned” the second count. After- the verdict he filed a motion in arrest of judgment on the grounds (1) that the indictment and each count thereof were “bad on their face”; (2) that there was a variance between the evidence and the indictment and each count thereof; and (3) that the verdict was improperly entered. That motion was also overruled and he then filed (1) an appeal from the judgment; (2) an appeal from an order overruling the demurrer; (3) an appeal from the order overruling the motion in arrest of judgment; and (4) on July 8th, 1936, a second appeal from the judgment.

Since the first appeal raised all questions intended to be presented by the second, third, and fourth appeals (being Nos. 52, 53, and 54 on this docket), they were ³⁶⁷ unnecessary, improvidently entered, and must be dismissed. In the course of the trial the appellant reserved eight exceptions to rulings of the court on the admissibility of evidence. The appeal in No. 51 of this docket requires a review of those rulings as well as the court’s action in overruling his demurrer to the indictment and his motion in arrest of judgment. The demurrer to the whole indictment was based upon the contention that the first count charged appellant as a principal, and the second as an accessory to the same offense, and that the two counts could not be combined in the same indictment.

The objection urged to the second count of the indictment was that it failed to designate the agency through which the actual burning was done with sufficient particularity to inform the defendant of his identity. It is axiomatic that an indictment must describe the offense with which it charges the defendant with sufficient particularity to inform him of its nature, and to permit him to plead any judgment that may be entered in the case in bar of any future prosecution for the same offense. It is also settled that in, ¡the case of a statutory offense it is sufficient to charge the offense in the words of the statute but with such other particulars as may be necessary to identify that particular offense and distinguish it from all others, in order that the defendant may be sufficiently apprised of the charge against him to prepare his defense. The second count of the indictment fails to meet that test, since it neither states the name of the person who did the actual burning, nor that such name was not known to the grand jury.

In 31 C. J. 739, it is said: “All the material averments of an indictment against the principal must be embodied in the indictment of an accessory before the fact, and the same particularity is required. The commission of the offense by the principal must be alleged, unless, in case of a felony the principal has been convicted, in which case it is sufficient, at com ³⁶⁸ mon law, to recite the record of the conviction, and his name must be stated where known, but if unknown it is sufficient that such fact be alleged.” In United States v. Simmons, 96 U. S. 360, 362 , 24 L. Ed. 819 , in considering the following count in an indictment, “Did knowingly and unlawfully cause and procure to be used a still, boiler, and other vessel, for the purpose of distilling, within the intent and meaning of the internal revenue laws of the United States, in a certain building and on certain premises where vinegar was manufactured and produced, against the peace of the United States and their dignity, and against the form of the statute of the said United States in such case made and provided,” the court said: “Where the offense is purely statutory, having no relation to the common law, it is, ‘as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.’ 1 Bishop Crim. Proc., sec. 611, and authorities there cited. But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defense, and plead the judgment as a bar to any subsequent prosecution for the same offense.

An indictment not so framed is defective although it may follow the language of the statute. “Tested by these rules, the second count is insufficient. Since the defendant was not charged with using the still, boiler, and other vessels himself, but only with causing and procuring some one else to use them, the name of that person should have been given. It was neither impracticable nor unreasonably difficult to have done so. If the name of such person was unknown to the grand jurors, that fact should have been stated in the indictment.” The demurrer to that count should therefore have been sustained. ³⁶⁹ The objection to the first count that it did not sufficiently allege the ownership of the house that was burned is obviously without force, and the demurrer to that count was properly overruled.

But while there was error in overruling the demurrer to the second count of the indictment, the error was not reversible, because “just before verdict,” the State abandoned the second count, and the verdict was guilty “on first count.” The appellant was not therefore injured by the error. 17 C. J. 285, 283. In view of these conclusions, it would not be necessary to consider the action of the court in overruling the demurrer to the whole! indictment but for the fact that the appellant contends that the “abandonment” of the second count was without his consent, and that he was prejudiced thereby, because he contends he could not be legally tried under an indictment which charged him both as an accessory and as a principal. One fallacy of that contention is its essential premise that the second count charges the defendant as an accessory. It is true that at common law “an accessory before the fact is one who, though absent at the time of the felony committed, doth yet procure, counsel, command or abet another to commit a felony. 1 Hale P. C. 615; R. v. McDaniel, 19 St. Tr. 745; Fost. 121; 1 East, P. C. 352; 1 Chit.

Cr. L. 262 ; and see Steph. Dig. Cr.

L. (6th Ed.) 33” Archbold’s Crim. Ev. Pl. and Pr. 14Í7; Arson is a felony (2 Wharton Crim.

Proc., sec. 1052, 2 Bishop Crim. Law sec. 18), and if the burning alleged in the count constituted arson as defined by the common law, the language used might at common law well be held to charge 'the defendant as an accessory rather than as a principal. But the indictment and each count thereof are under the statute and not at common law, and under the statute one who aids, counsels, or procures the burning of a dwelling house is guilty of arson as a principal and is subject to the same punishment as though he had himself actually burned it. Code (1935 Supp.), art. 27, sec. 6.

Arson as defined in that section includes not only ³⁷⁰ the physical act of setting fire to the dwelling, but also the act of aiding, counseling, or procuring another to do so. The statute provides in part “Any person who wilfully and maliciously sets fire to or -burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another, shall be guilty of arson, and upon conviction thereof, be sentenced to the penitentiary for not less than two nor more than twenty years.” Code (1935 Supp.), art. 27, sec. 6. It is consistent with that language that one may be guilty of arson if he has counseled the burning of a house even though there has -been no actual burning, since the mere willful and malicious counseling of a burning, under the language of the statute read literally, without more, constitutes arson. That definition is, however, not only contrary to the common law definition of the crime, but it is also wholly foreign to any meaning given the word in any known usage. ' It was within the power of -the Legislature to define the crime of unlawfully burning property, and to designate the crime defined by it by such name or title as it deemed appropriate, and this court is bound by its language.

In the absence of anything to indicate a contrary intent, it must be assumed that the words used have the meaning naturally given them in ordinary usage, for if the language used is plain and unambiguous there is no room for construction. Baltimore v. Deegan, 163 Md. 234 , 161 A. 282 ; Tull v. Fitzgerald, 167 Md. 429 , 175 A. 216 . But from the context it seems obvious that what the Legislature had in mind in using the term “counsels,” was counseling the burning of a dwelling which had in fact been burned, not merely counseling a crime which was never committed. Because the use of the word “arson” to describe -an act which did not result in setting fire to a dwelling or other structure is so contrary to any accepted definition of it (Bouvier’s Law Dict., Rawle’s ³⁷¹ Third Revision, p. 246), that its use to describe an offense not connected with any actual burning is so unusual as to itself render ambiguous any such use of it.

It may therefore be assumed that in the use of the word “counsel” the Legislature meant to “counsel” the burning or setting fire to a dwelling house which in fact has been burned or which has been set on fire. And while at common law one who aids, counsels, or procures another to wilfully and maliciously set fire to a dwelling house is an accessory, by the statute he is made a principal, and his act in so counseling, aiding, or procuring is in itself a substantive offense. 1 Hale P. C. 615; Odger C. L. 132; 1 Bouvier Law Diet., Rawle’s Third Revision, p. 100. But since the crime charged in the first count was of the same general nature as that charged in the second count, it was not improper to join them in the same indictment, Hoch heimer on Crime & Crim. Proc.

(2nd Ed.), sec. 106; Joyce on Indictments, sec. 532; see, also, ch. 25 Id.; Wharton on Crim. Proc., sec. 335 (10th Ed.), even though in the one the defendant had been charged as an accessory and in the other as a principal (31 C. J. 778; Hoehheimer on Crime & Crim. Proc., sec. 106; Archbold’s Crim. Pl., etc., 56; Joyce on Indictments, sec. 125; Bishop, New Crim.

Proc., sec. 449), since both are felonies (Bishop on Crim. Law, secs. 672 and 673) of the same grade and subject to the same punishment. It cannot therefore be said that the two counts were improperly joined in the indictment. Wharton Crim.

Proc., secs. 339-342, Bishop Crim. Proc., sec. 467. No objection was urged in this court to the court’s action in overruling the motion in arrest of judgment, and for that reason it is unnecessary to consider it further than to say that after an examination of the record in connection with it, we have found that ruling free from error. The record presents eight exceptions to rulings on the admissibility of evidence.

The first was to the action of the court in allowing Charles H. Heintzman, alleged owner of the burned dwelling, to answer this question: ³⁷² “Among others did you lease one of your bungalows during April and May of this year to Mr. and Mrs. William Ford of Baltimore? That’s in writing?” The answer was “I presume it was, I don’t know whether writing or verbal, I am under the impression that it was verbal.” Wimpling, the appellant, was the father of Mrs. Ford, and he occupied the bungalow. Appellant’s