Summary
From the circuit court of Yazoo county.
IIom. Wiley H. Potter, Judge.
Banks, appellant, was indicted for arson; the indictment charging that he “did then and there willfully, unlawfully, and feloniously set fire to and burn a certain dwelling house then and there situated,” etc. Appellant demurred to this indictment because it was not alleged that some one resided therein either in the daytime or at night, nor that the setting fire thereto was in the daytime or night. The court below overruled the demurrer, holding the indictment to be good under Code 1906, § 1040, which is as follows:
“1040 (964). The Same — The Burning of All Other Houses, Day or Night. Every person who shall wilfully set-fire to or burn, either in the nighttime or daytime, any house of public worship, or any school house, or cotton house, or gin house, barn, stable, mill house of any description, or any house or building erected for manufacturing purposes, or ship, or vessel, or any public building or office of any kind, or any other house or building not embraced or provided for in the precéding sections of this chapter, shall, on conviction thereof, be imprisoned in the penitentiary not more than ten years.”
On the trial the defendant objected to the admission in evidence of two confessions, made by him shortly after his arrest because they were not free and voluntary. The defendant being convicted appealed to the supreme court. The. facts are further stated in the opinion of the court.
The indictment alleges that the house burned was a dwelling house but does not allege that any one was living in it, or usually resided there, at the time it was burned.
The only code section under which it can be pretended that the indictment is good is Code 1906, § 1040, but defendant is guilty of no offense under it for the reason that it was intended to cover “Any other house or building not embraced and provided for in the preceding sections” (quoting from the language of this section). And further the class and character of build-' ing enumerated, such as churches, school houses, gins, etc., furnish abundant proof that it was not the intention to cover a case like this one.
"While it is true that there should be some provision made to-cover such a case as this record presents, yet, there is no such provision in the code, and the defendant is entitled to a strict construction of the law as written.
The first confession was made to Morris "White in the presence of George Y. Warren, the magistrate, Sunday evening.
In the case of Johnson v. Slate, 89 Miss. 773, 42 South. 606, this court held such a confession to be inadmissible. Such is the settled law of this state.
The learned trial judge excluded properly this confession, made Sunday evening.
The confession made the next day practically to the same parties should have been excluded from the jury, because it was the duty of the state to prove beyond every reasonable doubt that the hope of obtaining his liberty, or of lighter punishment, which the testimony cle'arly shows was held out to the defendant, was completely and absolutely eradicated from the mind of the •defendant. Bilis v. State, 65 Miss. 44, 3 South. 188; State v. .Smith, 72 Miss. 420, 18 South. 482
'Appellant was indicted under Code 1906, § 1040.
The demurrer was overruled and properly so. The indictment was good under the section above mentioned. Dich v. State, 53 Miss. 384.
After having made the. first confession accused Was warned that he was, in the language of one of the witnesses, “knocking at the door of the penitentiary.”
On Monday morning after the previous confession and warnings the day before and without any inducement whatever he stated to the same parties that he burned the house and- told them his reasons therefor, but did not state how he burned it. This last confession was admitted in evidence over appellant’s objection and exception.
It will, be noticed that the inducement held out to the. prisoner to confess-was slight, and that after the confession was made, the justice of the peace expressly warned him of the result, and these subsequent statements were made after appellant had been remanded to jail.
We are not unmindful of the rule announced in Whitley's case, 78 Miss. 255, 28 South. 852, and Maclcmasters case, 82 Miss. 459, 34 South. 156, following earlier cases to the same effect, but contend that this case does not fall within the rule "there announced.
The case falls within the rule announced by Campbell, C. J., in the case of Simmons v. State, 61 Miss. 243; see also,. Peter v. Slate, 4 Smed. & M. 31; Simon v. State, 37 Miss. 288; Van Burén v. State, 24 Miss. 516.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
