Peverelly v. People

3 Park. Cr. 59 | N.Y. Sup. Ct. | 1855

Clerke, J.

The principal question in.this case depends upon the legal signification of the term “adjoining.”

The word is derived either immediately or mediately through the French from the Latin language. The Latin word “adjungo,” from which it has sprung, signified “tc join to;” but the etymology of a word would be an uncertain guide to its present popular or even technical meaning. Not only words of classical and foreign origin, but those indigenous to the Anglo-Saxon stock, have, in many instances, widely departed from their primitive acceptation, and, in some instances, have been transformed into one entirely opposite and dissimilar. The word “prevent” may be cited, among many others of a similar history. It is derived from the Latin “prcevenio,” “to go before,” and, in our translation of the Bible, in the liturgy, and in old theological standards, it is employed to express the idea of “ assisting ” and “going before.” At present it means “hindrance,” “impediment,” and is used in no other sense.

The word “adjoin” seems popularly to have no fixed meaning. I have no doubt that it is frequently employed in ordinary language merely to express nearness; but there are no indications, in the instances in which it is more formally used, that its present signification is at all different from that of its Latin original.

Mr. Crabbe, in his English Synonyms, classifies together “ adjacent,” “ adjoining” and “ contiguous;” and, after giving the etymology of these words, illustrates the difference between them in the following manner: “ What is adjacent may be separated by the intervention of some third object: ‘They have been beating up for volunteers at York, and the towns adjacent, but nobody will list.’ Granville. What is adjoining must touch in some part: ‘ As he happens to have no estate adjoining, equal to his own, his oppressions are often borne without resistance.’ Johnson. What is contiguous must be fitted to touch entirely on one side: ‘ We arrived at the utmost boundaries of a wood, which lay contiguous to a plain.’ Steele. Lands are adjacent to a house or town; fields are adjoining to each other; houses contiguous to each other.”

In the case of Rex v. Hodges (1 Mood, & Malk., 341), this meaning was given to the word “adjoining," in a case not unlike the present. The prisoner was indicted, on the 7th. and 8th George IV. (ch. 29, § 38), for stealing pear trees, described, in one of the counts of the indictment, as growing on ground “ adjoining,” &c., to a dwelling-house; held, “ adjoining ” imported “actual contact,” and, therefore, ground separated from a house by a narrow walk and paling, with, a gate in it, was not within the meaning of the act.

One of the statutes under which the prisoner in this case was indicted provides that “ every person who shall willfully set fire to or burn in the night-time any shop, warehouse or other building, not being the subject of arson in the first degree, but adjoining to, or within the curtilage of, any inhabited dwelling-house, so that such house shall he endangered hy such firing, shall, upon conviction, be adjudged guilty of arson in the second degree.” The court below were of opinion that the words, “ so that such house shall he endangered hy such firing,” were sufficient to show that the statute meant any house near enough to be endangered. It must be admitted that there is some force in this view, as these words appear to be superfluous if the word “ adjoining” signified only a house in actual contact with the place set fire to; for every house in actual contact, it may be alleged, must necessarily be endangered by such an act; but if such a qualification of the word “ adjoining ” were to be accepted, it would give the term a much more extended signification than the prosecution contends for or than the court below evidently intended. It would be impossible to limit, in a city, the distance in which any house may not be endangered when any other building in it is on fire; the danger would depend upon the combustibleness of the intervening houses, the preparations of the incendiary, the state of the weather, and the means of suppressing the original fire or of arresting its progress.

Even if these words, therefore, cannot be applied to any other antecedent, it is safer to consider them as surplusage, than to give them the effect of changing a term from its well established and recognized signification.

I am of opinion that the court below erred in its charge to the jury on this point, and that a new trial should be granted.

Mitchell, P. J.

The act under which the defendant was indicted provides (omitting some words not now material ) that every person who shall willfully set fire to or burn, in the night-time, any building not being the subject of arson in the first degree, but adjoining to or within the curtilage of any inhabited dwelling-house, so that such house shall be endangered by such firing, shall be guilty of arson in the second degree.

The building set fire to by the defendant was a store and not inhabited, and did not touch any inhabited house, nor was it within the curtilage of any, but was in a block where there were several dwelling-houses; two of them, each, on another lot; and not more than ten or twenty feet from the store. The act may admit of two constructions : one, that it applies to a person who shall so set fire to or burn a building, &c., adjoining an inhabited house, that such adjoining house shall be endangered by such fire; the other, that it applies to a person who sets fire to a building, &c., which so adjoins a dwelling-house that the dwelling-house is endangered by the fire.

If this construction were right, then the sentence would read, that the person should be guilty who should set fire to a building, &c., so adjoining to or so within the curtilage of any inhabited dwelling-house that such house should be endangered by such fire; and the “so” must then qualify the term “ within the curtilage,” as well as the term “ adjoining.”

There could be no need of thus defining the meaning of being “within the curtilage;” that was already sufficiently understood, and this makes it probable that the term “ so ” was meant not to qualify the words “adjoining,” or being “within the curtilage,” but the verbs “shall set fire to or burn.” If the prisoner should set fire to or burn a store, in such a manner that he endangered an inhabited dwelling-house, adjoining to or within the same curtilage as the store, by such fire, then he was to be deemed guilty. But if he set fire to the store in such manner that the adjoining dwelling-house was not in danger by such fire, then he was not guilty under this section.

This being the proper reading of the section, the question remains, what does “adjoining to” mean in this act. In addition to what my brother, Clerke, has said on that subject, it may be proper to refer to 2 Revised Statutes (p. 657, § 10), which, after arson in the first degree is defined in section nine, declares that no warehouse, outhouse, &c., shall be deemed a dwelling-house, or part of a dwelling-house, within the meaning of the preceding section, unless the same be joined to, immediately connected with, and part of a dwelling-house.

If this store and the two dwelling-houses near them had been separated as they are, and had been used as parts of a hotel, and no one ever slept in this store, or was in it when it was set on fire, could it, by possibility, have been held that the defendant was guilty of arson in the first degree, and that this store joined to and was immediately connected with it for the purposes of the hotel, and to which it was applied, although not by contact, but it would not be joined to it. If the terms, “joined to and immediately connected with,” both refer to the position of the building, and not to the uses to which they are applied, as is probably correct, then each helps to define the other, and to show that both were used, as well as the words “ part of the dwelling-house,” so as, by an accumulation of words of nearly the same meaning, to secure the construction which each phrase was intended to have, an actual contact. ■

The term “ adjoining ” is used in its strict sense, as indicating actual contact, in the law as to division fences (1 R. S.. 553, $$ 30, 31, 33), and in section four hundred and one of the Code, prescribing the counties in which motions shall be made, and probably in other statutes.

The offence of the defendant is so great that it is quite natural an effort should be made to bring him within the section under which he is convicted; but the court is not at liberty to go beyond the fair meaning of the legislature in a highly penal statute.

A new trial should be granted.

Judgment reversed and new trial'ordered.