State v. Korth

McCOY, J.

The appellant was informed against and convicted of the crime of willfully burning property, insured against loss or damage by fire, with intent to defraud or prejudice the insured. The crime was alleged to have been committed as follows: That on the 19th day of February, 1915, in the county of Codington, state of South Dakota, the accused did willfully burn a barn situated on the N. W. yi of section 14, township 118, range 52 W., which was at the time insured against loss or damage .by fire, with intent to' defraud1 or prejudice the insurer. To which information the defendant demurred on the grounds: (r) That it did not state facts sufficient to constitute a cause of action; (2) that it does not describe a public offense under the laws of the state of South Dakota. The overruling of the demurrer is now assigned as error.

[1] The information was based upon section 657, Penal Code, which provides that every person who willfully burns, 01-in any other manner injures or 'destroys, any property whatever, which is at the time insured against loss or damage by fire, with intent to defraud' or prejudice the insurer, whether the same 'be the property of said person or any other, is punishable by imprisonment in the penitentiary. It will be observed that this information is in the language of the statute, and we are therefore of the view that the same is sufficient as against a géneral demurrer. The specific contention of appellant is that the information does not 'state that the barn alleged to have been destroyed was- the property of defendant. We are of the view that the language of this statute clearly makes the ownership of the property an immaterial question. Com. v. Goldstein, 114 Mass. 272 ; Arnold v. State (Tex. Cr.) 168 S. W. 123 ; Parb v. State, 143 Wis. 561 , 128 N. W. 65 .

[2] Appellant also contends that the information is insufficient in not stating the name of the insurer. In this class of cases, the gist of the offense is the burning of property with intent to defraud the insurer, and, although different insurers may have issued policies upon the same property, the burning of the property is but a single act, constituting but a single crime, how *543 ever many insurers there might happen to be, and it is therefore not material, as a matter of substance, who issued the. policy or policies of insurance. Com. v. Goldstein, supra.

[3] But it is urged that under section 222, Penal Code, ai amended ¡by chapter 242, Laws oí 1913, which provides that the information must be direct and certain as regards the name of the thing or person upon or against whom the offense was committed, the information in question is not sufficient. It is apparent that said section 222, as amended, was enacted for the purpose of securing to a defendant definite information as to the identity of the charge preferred against him. In this particular class of cases, the rule of certainty is as fully satisfied by definitely naming the thing burned as possibly could be attained by also naming the person who issued the policy. Hence we are of the opinion that the information was sufficient as against the general demurrer based on the first stated ground.

[4] Under the second ground for demurrer, that the information “does not describe a public offense under the laws of the state of South Dakota,” it is evident this allegation was intended to set forth the second ground for demurrer found in section 272, Code Crim. Pr. If it was not so intended, it adds nothing to the first ground. A demurrer of this character is specific in its nature and must distinctly specify the grounds of objection, or it will be disregarded. Section 273, Code Crim. Pr. There is a wide distinction between the two different grounds for demurrer interposed in this case, as was pointed out in State v. Julius, 29 S. D. 638, 137 N. W. 590 . The demurrer was properly overruled as to the second ground thereof for the reason that the specific grounds of objection were not stated therein.

[5, 6] Certain testimony was offered by the state as to certain conversations had with defendant in the year 1913, about two years prior to the commission of the offense charged. Witnesses testified that during these conversations defendant stated to them that he would not build a new barn before the old barn’ was. burned; that he must get the old barn burned before he would build a new one; that it .would not pay to repair the old barn. There was other testimony showing that the barn was old and dilapidated and covered- by insurance at the date of the conversations. This testimony was offered on the part of the state for *544 the purpose of showing a design or intent on the part of defendant to burn said barn. The defendant interposed the objection that the same was incompetent and immaterial and too remote, nearly two years having elapsed between the conversations and the date of the fire. We are of the view that the court committed- no error in admitting in evidence the said conversations. Wigmore on Evidence, §§ 108, 109, and notes. The length of time elapsing between the making of a threat or other statement indicating a criminal design, and the criminal act, when the crime is to be proved only by circumstantial evidence, is of importance in determining the.weight to be accorded to the statement. The length of time would impair the probative force of the statement, but would not render it inadmissible. The admission or rejection of such testimony is a matter largely in the sound discretion of the trial court in each particular case. Redd v. State, 68 Ala. 492 , being a case where evidence of' threats showing design to commit murder, made two years before the commission of the crime, was admitted. In Com. v. Holmes, 157 Mass. 233 , 32 N. E. 6 , 34 Am. St. Rep. 270 , evidence of threats, tending to show design at various times during nine years previous to the commission of the offense charged, was admitted; the court saying that the remoteness was a question for the court in the exercise of its sound discretion. Also, see Shaw v. State, 60 Ga. 246 ; Weed v. People, 56 N. Y. 628 ; Com. v. Quinn, 150 Mass. 401 , 23 N. E. 54 ; State v. Isaacson, 8 S. D. 69, 65 N. W. 430 . The probative force of evidence tending to show design or intention to do an act constitutes a circumstance which tends to connect the person, having such design or intention with-having committed the act when, it subsequently occurs. When one threatens to do an injury to another, and that or a similar injury afterwards happens; this furnishes ground .to presume that he who threatened the fact was the perpetrator. Threats or statements tending- to show an intent or design to commit the crime for which a person is upon trial are constantly received in evidence -against him, as circumstances proper to- he considered in determining the question whether he has in fact committed the -crime; for the reason that the threats or other statements indicate an intention to do it, and the existence of this intention creates a probability that he -has in fact committed it. Wigmore, *545 Evidence, §§ 102-105; Stokes v. People, 53 N. Y. 175 , 13 Am. Rep. 492 .

[7] It appears from the affidavit of appellant’s counsel that the information was taken into the jury room 'by the jury at the time they were deliberating upon their verdict. It is assigned that this constituted error. This question was raised as one of the' grounds for new trial, but is not mentioned or discussed in appellant’s brief, and is therefore deemed abandoned under the rule announced in prior decision of this court. Edgemont Co. v. Tubbs, 22 S. D. 142, 115 N. W. 1130 ; Durand v. Preston, 26 S. D. 222, 128 N. W. 129 ; Lawver v. Insurance Co., 25 S. D. 549, 127 N. W. 615 .

It is also urged by appellant that the evidence is insufficient to show that a crime has 'been perpetrated in connection with the burning of said bam because it does not show that defendant set said fire. While there is no direct evience in this case tending to show that the appellant did set fire to said barn, still we are of the view that the surrounding circumstances, as shown by the evidence, were sufficient to sustain the verdict. It will serve no useful purpose to set out the evidence in full in .this opinion.

[8] Other assignments of error are urged based upon the instructions of the court to the jury; but as no1 exceptions were taken to the instructions given, the errors assigned cannot be considered. All other assignments of error have been carefully considered, and we are of the view that no prejudicial error is shown to exist.

Finding no error in the record, the judgment and order appealed from are affirmed.