137 Wis. 358 | Wis. | 1908
It is conceded, as the fact is, that — unless suggestions hereafter mentioned should be approved, giving to the words of tfie written law a different signification than tfie same words have commonly — tfie offense with which tfie accused was charged is the same as tfie common-law offense of felonious burning of tfie dwelling house of another, which relates to tfie security of the habitation of tfie person characterized as “another” regardless of tfie location of tfie title to tfie property. Tfie idea is that tfie structure burned, in any given case, is tfie property of tfie person named, as owner to occupy as a dwelling house. 2 Bishop, Hew Grim. Law, § 12. So it has been commonly field that- one cannot, without some written law to tfie contrary, be guilty of arson by burning fiis own dwelling house. Heitfier can tfie wife or husband, because of their legal identity and common occupancy
The assistant attorney general contends that the common-law rule, stated, has been changed by the written law; that the general spirit of our statutes on the subject of felonious burning and other subjects indicates that the legislative purpose was to change the nature of the particular offense to one distinctively against property, instead of against the security of the home. Attention is called-to the fact that such offense is classified in the statutes, as it has been from the first, with other burnings of buildings, and criminal violations of property rights, under the head of “Offenses Against Property,” and that it is expressly provided now that a lessee or tenant of a dwelling house, who violates his own home by feloniously burning it, is guilty of burning the dwelling house of another. The argument is not without merit, though it is the opinion of the court that the particular invasion of the common-law rule, while retaining the set phrase, “dwelling house of another,” indicates a legislative intention to retain the common-law features of arson, except as thus changed.
■The foregoing conclusion by no means is controlling in favor of the accused on the facts of this case. The basis for the rule, carefully stated by the Michigan court, and by it carefully fenced about, is now absent. In saying this we assume the fact to be, as found by the jury — and upon sufficient evidence, in our opinion, to prevent such finding from now being rightfully disturbed, — that the accused was not living with Mrs. Kopcyznski at the time of the wrongful act; that they were not jointly occupying the home, but that it was occupied solely by her-as her habitation and that of her son. As the assistant attorney general suggests, the Michigan court repudiated any intention of holding that under such circumstances the offense would not be arson. It is the opinion of the court that such is the offense. There is no judicial authority to the contrary brought to our attention or which w© have been able to discover, nor any reason harmonizing with the logic of the common-law rule as applied to the concurrence of, facts to which only it relates.
The result is, in the opinion of the court, a married man can commit the crime of arson by burning the home of his wife with whom he is not living and from which he has been
By the Court. — Judgment is affirmed.