People v. Mooney

GRAY, C.

The defendant appeals from a judgment convicting him of the crime of arson in the second degree, from an order denying him a new trial, and from an order denying his motion in arrest of judgment.

Section 447 of the Penal Code defines arson as “the willful and malicious burning of a building, with intent to destroy it.”

The defendant was charged in the information with “the-crime of arson, committed as follows: The said K. J. Mooney on or about the fourth day of March, 1899, at and in the said county of Merced, and state of California, and prior to the filing of this information, did willfully, unlawfully, feloniously, and maliciously set fire to and cause to be burned a certain building occupied and used by said Mooney as a notion store, and situated on Main-street in the city of Merced,” etc. It will be seen that one important element of the crime of arson as defined in the code is the “intent to destroy.” The words quoted are a part of the description of the crime of arson, and there can be no such crime in the absence of this intent to destroy. It is therefore necessary that this essential element should be averred in the information, either in the language of the statute or in some other way, so as to make it clearly appear that the defendant had this specific intent and purpose, and that the building was burned by him to carry such intent and purpose into execution. The words “willfully, unlawfully, feloniously, and maliciously” were properly used in the information, but they are not sufBcient. Such words import only that criminal' intent which is a necessary part of every felony or other crime, but they do not necessarily include the specific purpose to destroy the building which is an element of the crime of arson. “Whether the indictment is on a statute or at the common law, it is a rule, universal and witliout exception, that every intent, like everything else which the law has made an element of the-offense, must be alleged; for otherwise no

prima, facie

case appears.” (1 Bishop on Criminal Procedure, sec. 523.) It has been held by this court in a burglary case that the information charging that the intent of the defendant in entering the build

[341]

ing was to commit the crime of felony, without stating what particular felony, does not state the offense of burglary.