52 Ala. 357 | Ala. | 1875
Arson at common law was the malicious and wilful burning of the house or outhouse of another. It was peculiarly an offence against property, and its possession. Therefore the burning one’s own house, of which he had possession, was not arson; though if the house was in a town, or so near to the houses of others as to endanger them, it was a high misdemeanor. 2 Russ. Crimes, 548. The statutes not only enlarge the subjects of arson, but it is a felony, or a misdemeanor, visited with punishment differing in severity, according to the circumstances attending the act, and the character of the subject. It is divided into three degrees, — the first having reference specially to the protection of human life, the second to the character of the thing to which fire is set, or which is burned, the third essentially to the protection of property merely. The first may be punished capitally, the second by imprisonment in the penitentiary for a term not less than two nor exceeding ten years, and the third by fine and imprisonment, or hard labor for the county, for a period not exceeding twelve months. R. C. §§ 3697-8-9.
The indictment against the appellant pursues the form pre
In an indictment for arson under the statutes, as at common law, the ownership of the house burned must be alleged, and proved as laid. Martha v. State, 26 Ala. 72. The house burned is laid in the indictment as the property of Jennie Pharr. The evidence disclosed that it was situate on the premises of one Alford, to whom Jennie was hired as a servant at monthly wages, under a contract by which Alford was bound to furnish her a house in which to live; that he had placed her in the possession of this house, and she was occupying it
In the case of The People v. Van Blaicum (2 Johns. 105), it is held, if one be indicted for burning the dwelling-house of another, it is sufficient if it be, in fact, the dwelling-house of such person. The court will not inquire into the tenure or interest which such person has in the house burned. It is enough that it was his actual dwelling at the time. In 1 Bish. Cr. Pro. § 573, the rule is stated to be that the house must be laid to be the dwelling-house of the real ocbupier. Jennie Pharr, in whom ownership is laid by the indictment, under the evidence, had a right to use and occupy the house, during her term of service. Alford .was bound to furnish her a house, and the stipulation of the contract in this respect was as obligatory on him as the payment of her wages. Her occupancy was then not merely permissive, but founded on a valuable consideration, the equivalent of rent to a landlord. It. was in her own right, as a tenant, for her own benefit, and not for the mere convenience or use of her employer. 2 Whar. Cr. Law, § 1579. The ownership was therefore properly laid in her, and not in her employer, whose right was not to the immediate use and occupation, but was in reversion, on the expiration of her term of service. The judgment is affirmed.