62 Ala. 177 | Ala. | 1878
The indictment is founded on the statute, (Code of 1876, § 4348,) for arson in the third degree, and charges the defendants with having set fire to or burned a crib, being a house or building, and the property of Caleb N. Williams. The evidence, on the trial, showed the crib was the property of said Williams and N. L. Atkinson, as tenants in common, but Williams had the exclusive possession, and was in the actual occupancy of the premises on which the ■crib was situate, under a contract with Atkinson, by which tho annual profits of cultivation, aftor deducting the expenses and two hundred and fifty dollars compensation to Williams for his personal services in superintending the cultivation, were to be equally divided between them.' The Circuit Court ruled ownership of the crib was properly laid in Williams, and that ruling, it is now insisted, was erroneous. An indictment for arson at common law, or in either of its degrees, as defined by the statutes, must aver the ownership of the house or other property which is set fire to or burned. But at common law, and under the statutes the offense is against tho possession rather than the property. — Snyder v. People 26 Mich. 106; The State v. Toole, 29 Conn. 344; Davis v. The State, 62 Ala. 357; People v. Van Blaicum, 2 Johnson, 105. The possession, not the tenure or interest in the property, must be described. — 2 Whar. Cr. Law, §§ 1610-11, 1677; 1 Bish. Cr. Pro. § 573. Therefore, at common law, the offense reaching only the dwelling house, the indictment must not have averred it was the house of him in whom tho fee resided, if in fact another had the actual occupancy,
We find no error in the record, and the judgment must foe affirmed.
