People v. Abrams

ANGELLOTTI, C. J.

This defendant and his wife were jointly charged by information with the crime of arson, in the willful, malicious, and felonious setting fire to and burning with intent to destroy a certain building, the property of another, occupied by them as tenants as a dwelling-house. In a second count of the same information they were charged with burning and destroying the same property with intent to defraud an insurer thereof. Separate trials were demanded and the trial of this defendant was had before his codefendant was put on trial. It does not appear that she has ever been tried. A verdict of not guilty was rendered as to the matters charged in the second count. As to the charge

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of arson, the jury found the defendant guilty of arson in the first degree. Judgment of imprisonment in the state prison was thereupon pronounced. We have here an appeal from this judgment and from an order denying a motion for a new trial.

The appeal in this case was taken, as the constitution requires, to the district court of appeal of the second appellate district, and that court affirmed the judgment and order appealed from. A hearing in this court was ordered principally because we were not satisfied as to the correctness of the disposition by the learned district court of appeal of the claim that the evidence was insufficient to support the verdict finding this defendant guilty of arson in the first degree. Further consideration of that question has satisfied us that the evidence furnishes no support for any such verdict.

By our statute arson, which is the willful and malicious burning of a building, with intent to destroy it (Pen. Code, se'c. 447), is divided into two degrees. Arson of the first degree, the more heinous offense, is defined as being the malicious burning “in the night-time an inhabited building

in which there is at the time some human being.”

(Pen. Code, sec. 454.) The presence of “some human being” in the building at the time of the burning is therefore obviously essential to this particular offense. And it is just as clear that it must be some human being other than the person or persons doing the forbidden act. It was so held in