Owen v. White , 182 Ga. 67 ( 1936 )

Hutcheson, Justice.

On December 18, 1935, White filed in the city court of Columbus, Muscogee County, a petition for habeas corpus, alleging in substance as follows: The petitioner is illegally restrained of his liberty by Owen, jailor of the common jail of said county, and the cause of said restraint is a certain sentence imposed upon him by the superior court of Muscogee County, said senten.ce being predicated upon a verdict of a jury of said court, returned on December 10, 1935, upon a prosecution for the offense of arson as alleged in two counts of a bill of indictment returned by the grand jury of said county at the August term of said court. The defendant with three others was accused, in count one of the indictment, with the offense of arson, in that they did unlawfully and with force of arms wilfully and maliciously set fire to, burn, and cause to be burned, and did then and there aid, counsel, and procure the burning of a certain building situate at 3223 Eiver Eoad in Muscogee County, together with certain described personalty therein. In count two of the indictment petitioner and the same others were accused of the offense of arson, in that they did unlawfully and with force of arms wilfully and. maliciously set fire to, burn, and caused to be burned, and did then and there aid, counsel and procure the burning of said building and the personalty described therein, with the intent to defraud certain named insurance companies, insurers of the building and its contents. The jury found the petitioner not guilty on the first count, and guilty on the second count. Said verdict is inconsistent, and the finding of the jury on the second count is repugnant to the finding on the first count, the same evidence being relied on by' the State for conviction on both counts of the indictment; and therefore the verdict, judgment and sentence are void.

The writ was granted and served upon Owen, the jailor, who answered and admitted the facts as pleaded in the petition in regard to the indictment, verdict, judgment, and sentence of the court, but denied that the same evidence was relied upon by the State for conviction on both counts of the indictment, or that the verdict, or the judgment or .sentence of the court, was void. Owen also presented his demurrers to the petition at the time of the hearing. The judge refused to sustain the demurrers at that time, but stated that he would hear the demurrers along with the answer on the merits; to which ruling’Owen excepted. Issue was joined, and the case proceeded to hearing. No evidence was introduced showing what the evidence was on the trial of the petitioner under the indictment. The judge sustained the writ and discharged the petitioner. Owen excepted.

Only headnote 3 will be discussed, as the rulings in headnotes 1 and 2 are sufficient within themselves. The Code of 1933 § 26-2209, defines the offense of arson as the wilful and malicious burning, etc., of a building, and as the wilful and malicious burning, etc., of a building with the intent to defraud. The first count of the indictment charges the petitioner with the wilful and malicious burning, etc., of the building. No allegation of burning, etc., with the intent to defraud, appears in the first count. While the burning, etc., of described personalty, located in the building, is included in the.first count, it is surplusage. The wilful and malicious burning of personal, property may be an offense under the Code, § 26-8116, which declares: "All other acts of wilful and malicious mischief, in the injuring or destroying any other public or private property not herein enumerated, shall be misdemeanors.” But an indictment for arson does not include the offense of malicious mischief. Crockett v. State, 80 Ga. 104 (4 S. E. 254). The first count of the indictment then merely charges the petitioner with the burning, etc., of the building as defined in § 26-2209, srrpra. The second count of the indictment charges the petitioner with the wilful and malicious burning, etc., of the building with the intent to defraud the insurer, under § 26-2209, supra, and with the wilful and malicious burning, etc., of certain described personalty located in said building, under § 26-2210, which defines the offense of arson as the wilful and malicious burning, etc., of personalty with the intent to defraud the insurer thereof. No attack was made in the court below on the form of the second count. Under count one the petitioner could have been found guilty only of the burning, etc., of the building. He was found not guilty on this count by the jury. Under count two he could have been found guilty of either (1) the burning, etc., of the building with intent to defraud, or (2) the burning, etc., of the personally with the intent to defraud. If he had been found guilty of the first offense under count two, such finding might have been repugnant to the finding on the first count. See Kuck v. State, 149 Ga. 191 (99 S. E. 622); Britt v. State, 36 Ga. App. 668 (137 S. E. 791); Smith v. State, 38 Ga. App. 366 (2) (143 S. E. 925); Davis v. State, 43 Ga. App. 122 (157 S. E. 888). However, if the petitioner had been found guilty of the second offense under count two, such finding would not be repugnant to the finding on the first count. Moreover, no evidence was introduced on the hearing showing what was the evidence relied upon by the State in the trial on the indictment. Even if- such evidence had been introduced and had shown that the evidence relied upon by the State for conviction was the same under both counts, it does not necessarily follow that the jury could not have found as they did. The statement just made is not to be construed as a holding that a court shall hear such evidence upon a habeas-corpus hearing.

Under the rulings set out above, .it is the duty of this court to construe the verdict of the jury and the judgment and sentence of the court as valid and binding. Code of 1933, § 27-2301. The verdict not being void for any of the reasons assigned, the judgment and sentence of the court based thereon is valid, and the writ of habeas corpus does not lie to release one being detained thereunder. The court erred in sustaining the writ and in discharging the prisoner.

Judgment reversed.-

All the Justices concur, except Bussell, G. J., and Ailcinson, J., who dissent.