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The State moves for rehearing, and urges that our opinion nullifies and renders of no effect article 1308, P. C., which provides that when fire is communicated to a house by means of the burning of another house, or some combustible matter, — it is presumed that the intent was to destroy every house actually burnt; provided there was any apparent danger of such "Construction." We observe in passing that the word "construction" makes no sense in this connection. An examination of the original enactment shows that the word "Destruction" was then used.
It is alleged in this case that appellant conspired with others, who are named in the indictment, to burn the house of Clyde Hamm. The proof showed that the conspiracy was to burn the house of one Boydston, which was in a town and next door to the house of Clyde Hamm, which latter house caught fire from the burning of Boydston's house, and was destroyed by such fire, and it was apparent that the burning of the Boydston house would endanger Hamm's house.
We are inclined to think the State misapprehends the proper application of article 1308, supra. The offense of conspiracy to commit any crime, — and that of the commission of the crime referred to as the object of the conspiracy, if any, — are in law two separate offenses. See article 1623, P. C.; Johnson v. State, 3 Texas App., 590; Whitford v. State, 24 Texas App., 489; Dill v. State, 35 Tex.Crim. Rep.; Bailey v. State, 42 Tex.Crim. Rep.; Rice v. State,
121 Tex. Crim. 68 , *Page 15651 S.W.2d 364 ; Braly v. State,68 S.W.2d 504 . The conspiracy is a complete offense when the parties thereto have come to agreement to commit the felony intended. See same authorities; also Dameron v. State,201 Ind. 53 ; People v. Drury,335 Ill. 539 ; Delaney v. State,164 Tenn. 432 ,51 S.W.2d 485 ; Runyan v. Farmers' Bank of Liberty Center, 210 Ia., 147; People v. Martin,114 Cal.App. 392 . In Meyers v. United States,36 F.2d 859 , it is said that the essence of a conspiracy is the unlawful agreement to violate a law, — rather than its actual violation; and the overt act required by the Crim. Code, sec. 37, and additional overt acts when pleaded, — are not parts of the crime.This appellant might be convicted or acquitted upon his trial for conspiracy to commit arson, and still be separately tried for the substantive crime of arson, i. e. the burning of the house. Article 1308, supra, would seem to have no bearing upon the question of conspiracy, but to mean and refer wholly to the guilt vel non of him who having set fire to or criminally effected the burning of one house whose burning plainly endangers other buildings, is sought to be held for the burning of such other building.
Arson being a wilful burning, there is reason for the enactment of article 1308, P. C., which would thus attach the elements of wilfulness to the burning of all other houses so close to the one actually intended to be burned by the accused, so as to make their such destruction an apparent result therefrom, but our reasoning wholly fails when we try to make article 1308 also include the separate crime of conspiracy, which is no part of Title 17, P. C., where the arson statute is found; but is an offense in itself whether its object be to murder, steal, rob or burn.
Not being able to agree with the State, its motion for rehearing is overruled.
Overruled.
Document Info
Docket Number: No. 16909.
Judges: Lattimore, Christian
Filed Date: 6/20/1934
Precedential Status: Precedential
Modified Date: 3/1/2024