Summary
In Sheedy v. State, 152 Miss. 82, 118 So. 372, this Court said: "Under the statute public school districts are not declared to be bodies corporate.
Summary of this case from Harrell, et al. v. City of JacksonOpinion
No. 27201.
October 8, 1928. Suggestion of Error Overruled.
1. ARSON. State, in prosecution for arson, must allege and prove ownership of property alleged to have been feloniously burned; proof in prosecution for arson must conform to indictment as to ownership of property claimed to have been burned.
In an indictment for arson, the state must allege, and upon the trial prove, ownership of the property alleged to have been feloniously burned; and the proof must conform to the indictment as to such ownership.
2. ARSON. Indictment charging feloniously burning public school is not sustained by proof of title in certain individuals as trustees.
Where an indictment charged that the defendant unlawfully, willfully, and feloniously set fire and burned a certain public building, to-wit, a schoolhouse, the property of the Union school district in said county, etc., such charge is not sustained by proof of title in certain individuals as trustees of a named school, where there is nothing in the deed to show school was a public school, and nothing to show that such school building was in a public school district.
3. SCHOOLS AND SCHOOL DISTRICTS. Public school districts are mere agencies of state, and have no power to buy, sell, or own land as such.
Public school districts are not, by statute, declared to be bodies corporate; they are mere agencies of the state, and have only such powers as are conferred upon them by law. They have no power, under the statute, to buy, sell, or own land as such.
APPEAL from circuit court of Choctaw county, HON. JOHN F. ALLEN, Judge.
D.H. Glass and J.H. Price, for appellant.
There are three things essential to sustain a conviction of the crime of arson. First, it must be proved that the property was destroyed by fire. Second, that the fire was caused by a criminal agency, and third, that the ownership of the property be proved as alleged in the indictment.
It is the contention of the appellant herein that the first of the above has been proven, namely, that the building was destroyed by fire. No criminal agency has been established with that degree of certainty required in criminal cases, and that there is a fatal variance between the allegations of ownership as alleged in the indictment and proof of the ownership adduced in this trial. The indictment sets out among other things that the defendant did "in the nighttime set fire to and burn a certain public building, to-wit: a schoolhouse, the property of the Union school district in said county." The testimony of J.T. Dean shows that the Union school district was abolished on May 23, 1925; that the Union consolidated school district was created by taking in all territory formerly embraced in the old Union school district and the territory embraced in the Bankston district and part of the territory of the Ebeneza school district; that the old trustees of the Union school district ceased to function and that new trustees of the Union consolidated school district were duly elected and qualified. In other words, a new institution was created by the board of education when a consolidated district was formed and duly ordered by it. Morris v. State, 8 So. 295; Avant v. State, 71 Miss. 78, 13 So. 881; Luker v. State, 14 So. 259; Strong v. State, 23 So. 392; Ratliff v. State, 54 Miss. 947; Dunlap v. State, 50 Tex. 504[ 50 Tex. 504]; Overstreet v. Commonwealth, 147 Ky. 471; State v. Carter, 49 S.C. 265.
Rufus Creekmore, Assistant Attorney-General, for the state.
Counsel argues strenuously that this case should be reversed because there was a variance between the allegation in the indictment as to the ownership of the property and the proof with reference thereto.
Counsel says that inasmuch as the Union school district was consolidated with other territory so as to form a consolidated school district prior to the burning of the building, then this of itself divests the old Union school district of its title to this property.
The situation here is simply that the title to this property must be in someone or somebody. If it was in the trustees of the Union school district, then it continued in them until title be divested from them either by deed, court decree or otherwise. The mere fact that the district is consolidated does not of itself divest them of title. If this be true, then there was no variance between the allegations in the indictment and the proof. Sanders v. State, 141 Miss. 289.
Counsel next argue that the state has failed to prove that the schoolhouse was destroyed by fire which originated through a criminal agency. This case is immeasurably stronger than was the case of Spears v. State, 92 Miss. 613, 46 So. 166, 16 L.R.A. (N.S.) 285.
Argued orally by J.H. Price and D.H. Glass, for appellant, and Rufus Creekmore, Assistant Attorney-General, for the state.
The appellant was indicted in the circuit court of Choctaw county upon a charge of arson, the indictment charging that he "did . . . set fire to and burn a certain public building, to-wit, a schoolhouse, the property of the Union school district in said county, contrary," etc.
A number of errors have been assigned, but we deem it necessary to notice one only, and that is, the proof does not conform to the indictment. A deed was introduced in evidence for the purpose of showing the ownership of the property, reading as follows:
"Mrs. Acklen Johnson to the Union School,
"The State of Mississippi, Choctaw County.
"For and in consideration of the sum of one dollar ($1.00), I convey and warrant to the present trustees and their successors in office the following described parcel of land, situated in the county of Choctaw, the First circuit and chancery court district, thereof, state of Mississippi, to-wit: Two acres in southwest corner of the southwest quarter of the northwest quarter, section 10, township 18, range 9. It is distinctly understood and agreed upon, if the said school shall cease to be a school, the land goes back to Mrs. Acklen Johnson or her assignees, and the house goes back to the builders and their heirs, and it is agreed, if the said school should cease, the builders shall have one year from time it ceases to get the house off of said land.
. . . . . . . .
"Containing two acres, more or less.
"Witness my hand and seal, this 20th day of December, 1919.
her "MRS. ACKLEN X JOHNSON." mark
It will be noted that the trustees named in the deed are not named as trustees of the school district, but the caption of the deed from Mrs. Acklen Johnson indicates that the trustees were trustees of the Union School. But there is nothing to show that the Union School is a corporation, or a public school district in the county. The description of the ownership of the property burned is essential in a charge of arson, the same being part of the description of the offense, and must be strictly proved as alleged. Proof must be made beyond a reasonable doubt before the defense is made. In an indictment for arson, it is necessary to allege, and upon trial to prove, the ownership of the property alleged to have been feloniously burned. Morris v. State (Miss.), 8 So. 295, not officially reported. "Under a statute making it arson to feloniously burn the building of another, though not used at the time as a dwelling, ownership may be laid in the owner of the building, though it be in the occupancy of a tenant. But, whether at common law or under statute, ownership must be proved as laid in the indictment." Avant v. State, 71 Miss. 78, 13 So. 881.
Under the statute public school districts are not declared to be bodies corporate. They are mere agencies of the state, and have only such powers as are conferred upon them by law. We find no power, and have been cited to none, authorizing the public school districts to buy and sell property, or to acquire and own property as such. The title to the property is in the individuals named in the deed, and their successors in office, and the indictment should have so alleged. Consequently, there is a variance between the allegations of the indictment and the proof which must result in the reversal of the judgment of conviction and a discharge of the appellant for the crime charged in the indictment; but, on account of such variance, the appellant will be held upon his appearance bond to await the action of the next grand jury of the county, under sections 1226 and 1227, Hemingway's 1927 Code (sections 1410 and 1411, Code 1906).
Reversed, and appellant held for appearance to next grand jury.
Reversed.