3 S.E. 927 | N.C. | 1887
The indictment charged that the defendant "feloniously, wilfully, maliciously and unlawfully did set fire to a certain house, used as a shop and store, then and there situate," etc.
On the trial there was a verdict of guilty. The defendant (642) moved in arrest of judgment, assigning as grounds of the motion, *499 first, that the indictment charges that the defendant "did set fire to a certain house"; and secondly, that it does not charge the act to have been done "wantonly and wilfully."
The court overruled the motion, and gave judgment against the defendant. The latter having excepted, appealed. The defendant is charged in the indictment with a violation of the statute (The Code, sec. 985, par. 6), as amended by the subsequent one (Acts 1885, ch. 66), which provides, as amended, that "whoever shallwantonly and wilfully set fire to any church, chapel or meeting-house, or shall wantonly and wilfully set fire to any stable, coach-house, out-house, warehouse, office, shop, mill, barn or granary, or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them respectively shall then be in the possession of the offender, or in the possession of any other person, shall be guilty of felony, and imprisoned in the penitentiary for not less than five nor more than forty years." This statute, before it was so amended, did not contain the words "wantonly and wilfully," but in the place of them, wherever they now appear, the other words "unlawfully and maliciously," which the amendment struck out of it.
It will be observed that the indictment charges that the defendantwilfully "did set fire to," etc., but it does not charge, as it should do, that he "wantonly and wilfully did set fire to," etc. S. v. Massey,
As to the first ground of objection to the indictment, we think it unfounded. A "shop," in the sense of the statute, implies a house orbuilding in which small quantities of goods, wares or drugs and the like are sold, or in which mechanics labor, and sometimes keep their manufactures for sale; and as it is charged that the defendant . . . "set fire to a certain house used as a shop and store," it in effect and (644) sufficiently charges that he set fire to a "shop," a sort of house expressly named in the statute. A house used for the purpose of a shop is a shop while so used, within the meaning of the statute, whether built for that purpose or not. One of its purposes is to protect houses and buildings used as shops, and thus to protect shops.
As the judgment must be arrested, it is unnecessary to advert to other errors assigned in the record. There is error.
Let this opinion be certified to the criminal court of New Hanover county according to law.
Cited: S. v. Howe,