State v. Tennery

Wbi&ht, C. J. Sections 2598 to 2602, inclusive, provide for the punishment of those who shall, in the day or night time, set fire to and burn, inhabited or uninhabited buddings, &c. — these being described as dwelling houses, stores, warehouses, mills, manufactories, barns, stables, (with others,) 'or any building whatever, the same being owned by the person burning, or another, or of another. íhen section 2603 provides that if any person shall set fire to any of these buildings, or to any material with intent to cause the ' same to be burnt, he shall be punished, &c. This indictment was for setting fire to certain material, with intent to burn a building then occupied. If the case stood alone upon the first count, there might be great doubt' whether the proof sustained the charges. Giving to the word store, as there used, its usual signification, the reasona 438 ble construction of tbe pleading would 'be that tbe fire was set in tbe store — that is, tbe store room occupied by Hervey. And this would not be sustained by proof that it was set in tbe store of another, in tbe same building. Conceding the rule, however, contended for by appellant, that under our statute this is an offence, as at common law, to tbe possession, we think tbe language of tbe second count meets tbe proof. It is there charged that tbe fire was applied in a room, within a store building of said Hervey, and not in bis store. If Hervey owned tbe building and occupied a part of tbe same, and tbe fire was set in a room of tbe same building, occupied by another, with intent to burn tbe store of such owner, tbe pleader would be justified in stating tbe charge, as was done in tbe case. It could make no difference that tbe material and necessary consequence of tbe act, was to injure and destroy at tbe same time, tbe possession of tbe tenant. Judgment affirmed.