Peinhardt v. State

Arson. 1. Arson; Nature of Offense.- — Arson, both at common law, as well as under the statute, defining arson in the first degree, is an offense against the possession rather than the property. 2. Same; Definition. — Arson is the malicious burning of another’s house, and by another’s house, is'meant another’s to occupy. 3. Same; Indictment; Sufficiency. — To make an indictment for arson good under section 6301, Code 1907, which created a new statutory offense, the allegations must show that it was defendant’s house in conjunction with the statutory circumstances, and is insufficient if it fails to do so. 4. Same; Varimce. — -Where the charge was that the storehouse was that was burned was that of one S., adjoining a dwelling house of R., in which there was a human being, and the proof showed that the storehouse was occupied by defendant and one L. as tenants with ,S., there was a variance between the offense charged and that proven. 5. Same; Surplusage. — The allegation as to the ownership of the dwelling house adjoining the store burned was surplusage, and did not serve to alter the nature of the indictment as charging the offense defined by sections 6295.

Appeal from Cullman Circuit Court. Heard before Hon. D. W. Speake. Alvin Peinhardt was convicted of arson, and appeals. The indictment was as follows, omitting the formal parts: “Alvin Peinhardt willfully set fire to or burned a storehouse of Max Schmidt, which said storehouse adjoined the dwelling house of A1 Richter, and at the time of the said setting fire to or burning said storehouse there was a human being in the dwelling house of A1 Richter, which was adjoining said storehouse. (2) Alvin Peinhardt willfully set fire to or burned a storehouse of Max Schmidt, which was adjoining the dwelling house of A1 Richter, and there was at the time in snch dwelling house a human being — against the peace and dignity,” etc. The proof showed that the defendant and one Lessman were in occupancy of the building alleged to have been burned, under a lease contract with the owner, and that the lease did not expire until some time after the fire. The following charges were requested by the defendant, and refused: “ (1) “The court charges the jury that if they believe from the evidence in this case that the defendant and one August Lessman were in the actual ■occupancy of'the premises alleged to have been set on fire, at the time of the fire, under a lease or rental contract, and had the right to remain in the possession until the 1st of March after the fire, then they must find the defendant not guilty.” (3) “The court charges the jury that in the offense of arson like the one in this case, the person in actual possession of the premises at the time of the alleged burning is considered in law the owner, and to successfully maintain this prosecution the ownership should have been laid in the indictment in this case in the party or parties in actual possession of the burned premises at the time of the burning; and if the indictment alleges the ownership in another, and they believe from the evidence that the person who is alleged as owner in said indictment was not in the actual possession of said premises at the time of the burning, then the verdict must be for the defendant.” The hill of exceptions shows that the motion to quash the indictment came too late, and was properly overruled. — Williams v. The State, 81 Ala. 1; Bell v. The State, 115 Ala. 25. It was permissible.to show the value of the stock of goods, as tending to show motive.— Winslow v. The State, 76 Ala. 42. Charge 2 was properly given. — 103 Ala. 78. Charges 3 and 4 were proper. —Prater v. The State, 107 Ala. 27. Charge. 4 was correct.- — Pelham v. The State, 89 Ala. 28. Charge 1 was proper. — Welch v. The State, 96 Ala. 92; Winter v. The State, 123 Ala. 1; Goleman v. The State, 59 Ala. 52. Charges 1 and 3 were properly refused to the defendant. —Sec. 6301, Code 1907. Charge 2 was properly refused. —Bowen v. The State, 140 Ala. 65. Charge 4 was properly refused. — Willis v. The State, 134 Ala. 429.