1. The defendant was indicted for the offense of arson, and charged with burning the occupied dwelling house of W. G. Sims, on his plantation, in the county of Schley. On the trial the jury found the defendant guilty, and recommended him to the mercy of the Court. The defendant made a rtiotion for a new trial on the several grounds set forth in the record, which was overruled, and the defendant sentenced to be executed. Exceptions were filed to the refusal of the Court to grant the new trial, and the case is brought before this Court for review*. We find no error in admitting the confessions of the defendant to be submitted to the jury, nor in the charge of the Court in relation thereto. The confessions of the defendant were shown to the Court to have been, prima faoie, at least, freely and voluntarily made, and it was not error in the Court in submitting the same to the jury, under its charge, as to the law applicable thereto, leaving them to give such weight and credit to the defendant’s confessions as they might believe them entitled to.
2. The 4311th section of the Code declares, that the willful and malicious burning of an occupied dwelling house of another, on a farm or plantation, or elsewhere, shall be punished with death, but the punishment may be commuted in conformity with the provisions of section 4257, of this Code. The 4257th section provides that the punishment of death for murder may be commuted by .the sentence of the presiding Judge, when the conviction is founded solely on circumstantial evidence, or if the jury trying the traverse shall so recommend. Now the question is, what is the proper construction to be given to the 4311th section of the Code, which punishes the offense of burning an occupied dwelling house with death ? Does it contemplate that the conviction must be on circumstantial evidence alone, or does it contemplate that if the jury trying the traverse shall recommend that the defendant be imprisoned in the penitentiary for life, the pen*584alty shall be commuted? This question is not entirely free of doubt and difficulty. The 4220th section of the old Code is the same as the 4257th section of the new Code, which the Act of 13th December, 1866, refers to; the provisions of which latter Act are substantially embodied in the 4311th section of the new Code. As the law stood in the old Code, section 4275, the burning of the dwelling house of another, on a farm or plantation, was punished by imprisonment in the penitentiary. By the Act of the 8th of March, 1866, the burning of an occupied dwelling house of another, on a farm or plantation, was punished with death.
3. We have shown that the 4220th section of the old Code and the 4257th section of the new Code are the same in relation to the commutation of the death penalty for murder where the conviction for that particular specified offense is founded solely on circumstantial evidence. Then comes the Act of 13th December, 1866, which declares that in all cases in which the penalty'prescribed by law for any offense is death, the sentence may be commuted in conformity with the provisions of the 4220th section of the Code. It was not intended to change the law in relation to the offense of murder; that ■was already provided for, but the intention was to extend the provisions of that section to all offenses punishable with death, other than murder, that is to say, in all cases, other than murder, where the punishment is death, and the jury shall recommend that the defendant be punished by imprisonment for life in the penitentiary, the pi’esiding Judge may commute the sentence of death, as provided in the 4220th section of the old Code, and the 4257th section of the new Code. It will be observed that the Act of 13th December, 1866, is silent upon the subject of circumstantial evidence, but declares, that in all cases in which the penalty of death is prescribed by law for any offense, the sentence may be commuted in conformity with the sections 4220, 4257 of the old and new Code. Whatever doubts may exist in our minds as to the proper construction to be given to the Act of 13th December, 1866, substantially embodied in the 4311th section of the new Code, we yield *585them in favorem vitae, and hold and decide that it was the duty of the Court below on the trial of the defendant in this case, to have charged the jury, that they could by their verdict, if they thought it proper to do so, recommend that the defendant be punished by imprisonment in the penitentiary for life, and that it was error in the Court in failing to so charge them, and if they had so recommended, then it would have been the duty of the Court to have commuted the penalty in accordance therewith. Such, in our judgment, is the proper construction to be given to the Act of 13th December, 1866, it being the true intent and meaning thereof that the death penalty should be commuted in all cases, other than murder, whenever the jury trying the traverse should so recommend, as provided in cases of a conviction for murder founded solely on circumstantial evidence, in the 4220th and and 4257th sections of the old and new Code. In our judgment the verdict of the jury was contrary to law, in this, that the evidence does not sufficiently establish the fact that the dwelling house was oeoupied at the time it was burned. This was an essential element to constitute the offense, and as it may be punishable with death, unless the penalty should be commuted by the recommendation of the jury, it ought to be clearly proved.
4. The evidence that the house was occupied at the time it was burned, is a matter of inference, rather than of positive proof, from the evidence disclosed in the record.
