People v. De Winton

Van Fleet, J. This is an appeal by the people from an order arresting the judgment upon a conviction of arson, the question being whether the'indictment sufficiently charges the offense.

The material part of the indictment' is that: “The said William W. de Winton on,” etc., at, etc., “ did willfully, maliciously, and feloniously, in the night-time, set fire to and burn a building, namely, a house then situate,” etc., “the property of William W. De Winton, with [405]the malicious, willful, and felonious intent then and there to destroy said building.” Then follows an averment that said house was situated in such immediate proximity to inhabited buildings, occupied by human beings, as to endanger life, etc., and did, then and there, threaten the lives of said human beings from said fire, etc.

Giving effect to the presumption which the law raises of identity of person from identity of name (Code Civ. Proc., sec. 1963, subd. 25), and it will be observed that the indictment charges the defendant with the burning of his own building.

At common law a man was not guilty of arson in willfully burning his own house, unless the house of his neighbor was thereby also burned; and this, even though the burning was with intent to destroy his neighbor’s house. (4 Blackstone’s Commentaries, Wendell’s ed., 221.) Arson has always been regarded as essentially an offense against the security of the dwelling or habitation, rather than against the property (1 Wharton’s Criminal Law, sec. 825; 2 Bishop’s Criminal Law, sec. 24; People v. Fisher, 51 Cal. 319); and the right to destroy his own dwelling was doubtless founded upon the right which the law accords to a man of making such use of his property as he may see fit, so long as others are not thereby injured. (1 Bishop’s New Criminal Law, sec, 514.)

In charging arson, therefore, it was always necessary, at common law, to aver the ownership of the building burned in another. And such is the rule in this country where not changed by statute. For this purpose, one in possession or occupancy of the premises at the time of the offense was deemed the owner, but it was essential that this should be averred and shown to be other than the defendant. (State v. Keena, 63 Conn. 829.)

If these principles are to be applied to the present indictment, it is quite obvious that it does not charge arson. It describes the building burned as the prop[406]