State v. Dennin

Poland, J.

The main question in this case is, whether there can be a legal conviction undpr the 4th section of chapter 104 of the Compiled Statutes for an attempt to commit the crime of arson, without an actual burning of some portion of the building.

The words of the section are, “If any person shall willfully and maliciously set fire, with intent to burn, to the dwelling house of another, or any outbuildings adjoining thereto, or to any other building, etc.”

The defendant’s counsel insist that under this statute no attempt to burn a house or other building, however deliberate or formidable, constitutes the offence provided against, unless the building be actually set on fire and some part of it burned; and several adjudged cases in England, and the language of several respectable elementary writers on criminal law, are relied on to support this view.

Arson, at common law, consisted in the willful and malicious burning of the house, or outbuildings adjoining thereto, of another; or, as Mr. Chitty defines it, the house or barn of another. To constitute the offence there must be an actual burning of some portion of the building, but it was not necessary that the building should be wholly consumed; if any portion of the building was burned the offence was complete.

Various statutes were enacted in England, at an early period, extending the offence of arson to other buildings and property than those included within the common law definition, and also modifying the punishment, and especially to limit or extend benefit of clergy to that class of offences.

In all these statutes prior [to that of the 9th of Geo. 1st, so far as I have examined them, the words burn, or cause to be burned, are uspd in describing the offence.

*163 The act of 9 Geo. 1., chap. 22, which was passed to extend the punishment for arson to cases of rescue of any person in lawful custody for that offence, and for hiring any person to aid in committing it, and also to take away benefit of clergy from the offence, known in its day in England as the “ Black Act,” first used the words set fire to: “If any person or persons shall set fire to any house, etc.”

After the passage of this act questions arose in indictments under it whether this change of language had really changed the nature of the offence, and whether it was still necessary to prove an actual burning in order to make the offence complete. The judges held that even under this statute an actual burning must be proved, because they said this statute was not intented to alter the nature of the crime, or constitute any new offence, but that its object was to exclude the principal offender from his clergy more clearly than he was before; see Taylor’s case, Leach’s Crown Cases 51; Spalding’s case, Leach’s Crown Cases 217; Breeme’s case, Leach’s Crown Cases 219 ; 1 Hawk. P. C. 166; 2 East’s Crown Law 1020.

Since the act of 9 Geo. 1, the English statutes upon the subject of arson, extending the subjects of it and modifying the penalty, have generally used the words set fire to, instead of the words hum, or cause to he burned, and they have always received the same construction as under the act of 9 Geo. 1, and it has never been suggested that any new offence was intended to be created, or that the mere attempt to commit arson was thereby provided against.

It is not denied by the counsel for the defendant that the legislature, by the act of 1844, (sec. 4, chap. 104, Comp. Stat.,) intended to punish the mere unsuccessful attempt to commit the crime of arson, but they insist that the language used is so legally inappropriate and insufficient to that end that the design failed, and they succeeded only in re-enacting the existing statutes punishing arson itself.

In the first place they allege that the operative words of the act itself, set fire to, by their own natural and inherent signification, mean the same as burn or set on fire, and that to give them any less signification is to force them out of their natural office. *164 But it seems to us that this claim as to the natural force and meaning of the words cannot be sustained, and that though the words may perhaps, without forced construction, well enough be so understood, still that they may as reasonably and fairly be understood the same as put fire to, or place fire upon, or against, or put fire in connection with, and that, especially when those words are used in connection with other words clearly showing that they are used in this latter sense, they may bear such meaning without the least violence to their natural import.

But if this be so, it is urged that these words have received a legal meaning, by a long course of judicial decision and construction, so firmly fixed and settled that when used in a statute it should be intended they were used , in that sense, even if their natural meaning were different in the connection in which they are used.

The general principle is quite familiar and settled, that where the legislature copy and enact here an existing English statute, or one from one of the United States, which statute has a settled judicial interpretation that is ordinarily understood, we adopt that interpretation with the statute.

But this is not commonly true of all the language used in a statute, and can hardly be true of any particular word, or set of words, except such as are mere technical legal words and phrases. It is often the case that the precise meaning of words is made to vary by the connection in which they are used, and the evident purpose and object of the enactment itself.

The English judges appear to have felt somewhat embarrassed in saying that the words set fire to, in the 9th of Geo. 1, meant the same as burn, or caused to be burned, in the previous statutes, and by the common law, but they justified it by saying that evidently the statute did not intend to change the nature of the offence, but was passed for a wholly different purpose.

Mr, East, an early writer on criminal law, after saying that an actual burning must be proved to constitute arson,, goes on to say, “ the statute of 9- Geo. 1, chap. 22, does indeed, in. enacting' the felony, make use of the words set fire to, but I am not aware of any decision which has put a larger construction on these words than prevails by the rule of the common law, and *165 the contrary opinion may he collected from what is said in Spalding’s case, and Breeme’s case, and in the case 'of Sarah Taylor.” Our statute of 1844, though it contains the words set fire to, is not a copy of any English statute, not even in substance, and contains very important qualifying words contained in no English statute. While all the English acts where these words ate used seem evidently passed for the purpose of extending the limits or changing the penalty of the crime of arson, our statute was confessedly enacted to punish the act of attempting to commit arson, where arson was not in fact committed.

Our statute contains the important qualifying words “ with intent to burn,” which are not contained in any of the English statutes, most clearly implying that the offence intended to be covered by the statute was something short of an actual burning. The opposite construction would make the statute read, “ If any person shall willfully and maliciously hwfn, with intent to burn, any house, etc.” It is conceded also that the construction claimed for these words would render the act of 1844 wholly nugatory $ and neither add to nor in the slighest particular affect the existing law of the State. The legislature had many years before extended the crime of arson to the burning of every species of building and property named in the act oi 1844, and the penalties imposed by the latter act are in the very words of the existing statutes against arson, so that the statute is to be wholly rejected or have such effect and operation given to it as the legislature clearly intended it should receive. In the construction of statutes, as in the construction of mere private instruments and writings, the great and leading rule is, what was the intention of those using the language as shown by the language used, and this intent is to prevail if it can be done without violence to the language used.

Statutes, like all other written documents, are to be construed so as to give effect to all the language used, if it can reasonably be done, and this applies as well to penal statutes as to any others.

So it is a well established rule in the construction of a statute that it is to be construed as it was supposed to be enacted, in reference to and in the light of all the existing statutes upon the *166 same subject, and to be so construed in connection with them that all may have effect and force if possible. The same rule is Expressed in the old books, that in construing a new statute, the 'old law, the mischief, and the remedy are all to be considered.

We are fully mindful of the established rule of law as to the ‘construction of penal statutes; that they are to be construed strictly, and that a crime is not to be created by any forced construction of language, but that it must fairly come within the words, as well as within the intent and spirit of the statute, but at the same time, this rule, in modern times at least, does not require an abandonment of the usual and ordinary rules of construction and common sense. Looking to the language of the statute itself, the already existing statutes on that subject, the evident purpose and object of the statute as to the mischief intended to be remedied, we do not feel doubtful of the construction to be given to the statute, and believe that it was correctly construed by the court below. The language used in the statute we think was chosen with care to avoid the very objections which are now made to this construction of the act, and that every word is effective and operative. They intended to punish the mere attempt to commit arson though not in fact committed, but if they provided generally against such attempts, great doubt and uncertainty might arise as to what constituted such attempt; the most remote and distant preparation might perhaps be deemed enough. They therefore provided merely against the actual application of fire itself. The word to in the statute (on which the argument of the defence is mainly hung, and which it is claimed is wholly thrown out by our construction,) we think was used with purpose and effect also. It is now urged that men may be indicted and convicted for setting fires, with intent to burn buildings, though set at ever so great a distance therefrom, and that doubt and danger will arise from that source. We think this very difficulty was purposely guarded against by the use of the word to, that is, fire must not only be applied, but directly to, or in immediate contact with the building, and not at a distance, though it thereby was designed to burn it.

In our opinion this statute, instead of being regarded as wholly unmeaning, may have effect, and sensible effect, given to every *167 part of it, so that it can stand sensibly with other statutes on the same subject, and fully carry out the intent of the legislature* and at the same time have no violence done to its words, or to any rule of law* governing the construction of penal statutes.

The eases cited from Mass, we think have no bearing, for their statutes are wholly in reference to the crime of arson, and the act of 1804, under which the case of Comm. v. Van Schaack, 16 Mass. 105 , arose, and in which the words set fire to are used* goes on and adds “ and by the kindling of such fire such house shall be burnt, etc.” The court in that case say, “the statute has left the burning to be defined by the common law, and by that, if any part of a dwelling house, however small, be consumed by the fire, the offence is complete, and so is within the statute.’*

The respondent also objects to the charge of the court in reference to the testimony of Campbell and Bryant.

Those witnesses had testified to seeing the respondent go into the barh just befbré the appearance of tlie fire, and professed to have known and recognized him at the time, and the case evidently rested mainly upon the strength and validity of their identification of the respondent.

The respondent, to weaken this, had given evidence tending to show that these witnesses, at the examination of the respondent immediately after the fire, had testified less confidently as to their ability to identify the respondent than they had at the trial. In their examination it had come out without objection that they immediately communicated what they saw of the defendant before they had time to deliberate or calculate upon the subjfect, and that they in fact caused the immediate arrest of the respondent, without any other cause or ground that appears, except what they saw themselves. The evidence given by the respondent had a tendency to establish that these witnesses had been operated upon by some influence to strengthen tlieir testimony, and to show that really, at the time of the transaction, they did not recognize the respondent as fully as they now professed to have done. Now it seems to us that the fact that at the very moment of the transaction they professed to recognize him, and acted upon that belief, and caused the respondent to be arrested, did naturally and reasonably tend to increase the credit to be given to their testimony as to *168 identity, and to rebut the effect .of the evidence as to their inability to recognize him given by the respondent, and that therefore the suggestion to the jury on this subject was legitimate and proper. The respondent’s exceptions are therefore overruled.

Benneít; J., dissented.