NORMAN HURST AND HARRY POOL
v.
STATE
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The Florida Supreme Court affirmed the arson convictions of Norman Hurst and Harry Pool, rejecting their argument that the indictment required proof that the dwelling house actually burned as a result of the defendants' actions. The court held that under the arson statute, proof of merely setting fire to a qualifying structure is sufficient for conviction, regardless of whether the structure subsequently burned.
Proof of setting fire to, or causing to be burned, a dwelling house or other qualifying structure is sufficient to constitute first-degree arson under the statute, regardless of whether the structure actually burned. The indictment's allegations of setting fire to and burning the structure need not all be proven; proof of any one of these acts is sufficient.
“Under the statute, the setting fire to or burning, or the causing to be burned, constitutes arson when the subject to which the fire is set, or which burned or is caused to be burned, is a building named in this section of the Act.”
Establishes that the statute covers three distinct acts, any one of which constitutes arson
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Join FLexlaw to unlock all legal intelligenceHurst and Pool were indicted under Florida's first-degree arson statute for setting fire to and burning a dwelling house belonging to Nancy Morey. The…
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The writ of error brings for review judgment of conviction against the plaintiffs in error under an indict*878ment charging the violation of Section 1 of Chapter 15603, General Laws of Florida, 1931. That section is as follows:
“Section 1. Arson.—First Degree. • Any person who willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied, or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belong to or adjoining thereto, whether the property of himself or of another, shall be guilty of Arson, in the First Degree, and upon conviction thereof, be punished by imprisonment in the State Prison for not more than twenty years.”
The contention is' that because the indictment charged that the defendants, “did then and there unlawfully, feloniously, maliciously and willfully set fire to and burn the dwelling house of one Nancy Morey,” that was necessary for the State to prove that the defendants not only did set fire to the house, but that the house burned by reason of such setting fire to.
Under the statute, the setting fire to or burning, or the causing to be burned, constitutes arson when the subject to which the fire is set, or which burned or is caused to be burned, is a building named in this section of the Act. And, though the indictment might have charged all three acts to have been performed by the defendants, the proof of the commission of either act would be sufficient to warrant conviction. A conviction under such an indictment would bar a further prosecution for the commission of either of the acts denounced by this section of the statute. See Booker v. State, 93 Fla. 211, 111 Sou. 476; McDuffee v. State, 55 Fla. 125, 46 Sou. 721.
Aside from this, the attack is made by a motion in arrest of judgment, the motion being on the ground that there is *879a variance between the allegations contained in the indictment and the proof submitted. A motion in arrest of judgment is not available on such grounds. Motions in arrest of judgment reach only such errors as are apparent on the record. Smith v. State, 29 Fla. 408, 10 Sou. 894; Caldwell v. State, 43 Fla. 546, 30 Sou. 814. It is apparent that to determine whether or not there is a variance between the allegations in an indictment and the proof submitted, it is necessary to examine the indictment and also the evidence contained in the bill of exceptions. Therefore, this infirmity cannot be tested by motion in arrest of judgment. Reynolds v. State, 33 Fla. 301, 14 Sou. 723.
We find the evidence sufficient to sustain the verdict and the judgment. Therefore, judgment should be affirmed and it is so ordered.
Affirmed.
Ellis, P. J., and Terrell, J., concur.
Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jones v. State, 147 Fla. 677 (Fla. 1941)…se, and that Gladys Jones and husband, Joseph Edward Jones, were living in it when it was destroyed by fire. This provision of the statute has been considered by the Court. See Love v. State, 107 Fla. 376, 144 So. 843; Hurst v. State, 118 Fla., 877, 160 So. 355; Brown v. State, 126 Fla. 429, 171 So. 211; Duke v. State, 134 Fla. 456, 185 So. 422. An information charging a crime substantially as defined by statute is sufficient. See Finch v. State, 116 Fla. 427, 156 So. 489; Tubb v. Mayo, 128 Fla. 190, 174 S…
Authorities Cited
- Smith v. State, 29 Fla. 408 (Fla. 1892)
- Booker v. State, 93 Fla. 211 (Fla. 1927)
- Reynolds v. State, 33 Fla. 301 (Fla. 1894)
- McDuffee v. State, 55 Fla. 125 (Fla. 1908)