51 Cal. 319 | Cal. | 1876
The offense with which the defendant is charged by the indictment amounts only to arson in the second degree, as defined by section four hundred and fifty-four, Penal Code. When the indictment, as in this case, charges only the lowest degree of a crime, as defined by the Code, it is unnecessary for the jury to specify in the verdict the degree of the crime of which the defendant is found guilty.
The house alleged to have been burned is described as the property of one B. W. Bours. It was proven that it was his property, but that one Capurro was in possession of it under a lease from Bours; and the point is made that, in this respect, there is a variance between the indictment and the proof; in other words, that, in an indictment for arson, the house should be described as the house of the occupant.
Arson, as defined by the common law, is an offense against the security of the habitation, rather than against the property which was burned (2 Bish. Cr. Law, Sec. 24); but by the Penal Code, sections four hundred and forty-seven and four hundred and forty-eight, the scope of the definition is materially extended. “Any house, edifice, structure, vessel or other erection, capable of affording shelter for human beings,” is a “ building” within the meaning of the chapter of the Code defining arson, and providing for its punishment. It is not necessary that the “house, edifice, structure, vessel, or other erection,” should have been intended for, or have been used as, a habitation; but it is sufficient if it be “ capable of affording shelter for human beings;” and for that reason it is not true that the willful and malicious burning of a building, which was not intended, or was not used, as a habitation, is an offense against the person rather than the property. It is not necessary, therefore, in an indictment for arson of the second degree, to describe the building as the building of the occupant or tenant; but it will be sufficient to describe it as the building of the owner, though it may have been held by a tenant, under a lease from the owner.
The point is made, that it was not proven that the alleged
The practice which obtains in some trial courts, of hearing the motion for a new trial on a statement of the evidence, finds no support in the Code. When the ground of the motion is that the verdict is contrary to the evidence, the motion is heard as it would be were it brought on for hearing immediately after the rendition of the verdict; but neither a statement nor the reporter’s notes are required to be filed in support of the motion. If the action has been heard and determined on its merits, and a motion for a new trial, on the ground that the verdict is contrary to the evidence, is denied, there is no case in which it is necessary for the judge to certify that the bill contains all the evidence. The provisions of section eleven hundred and seventy-five of the Penal Code are applicable to all bills of exceptions in criminal cases. The bill of exceptions must contain “ so much of the evidence only as is necessary to present the questions of law upon which the exceptions were taken.”
Judgment and order reversed, and cause remanded for a new trial. Eemittitur forthwith.
Neither Mr. Justice Crockett nor Mr. Justice McKinstry expressed an opinion.