| Wis. | May 1, 1894
The building burned was proven to be a dwelling house, therefore the legal question presented is whether the offense of burning a dwelling house is included within the provisions of sec. 4402, R. S. We are decidedly of the opinion that it is not so included.
Four sections of the Revised Statutes define and prescribe punishment for all'felonious burning of buildings, viz., secs. 4399, 4400, 4401, and 4402. They are manifestly intended to complement each other and form an harmonious and consistent code upon the subject. They must be construed together, and attention must be paid to the whole and every part of the law, its subject matter, its
Bearing this rule in mind, an examination of the sections above mentioned convinces us that it was never designed that the felonious .burning of a dwelling house should be prosecuted and punished under sec. 4402. Secs. 4399 and 4400 are directed specially and exclusively against felonious burnings of dwelling houses. They are manifestly intended to cover all offenses of this nature against the habitation of men, whether in the night time or in the day time. Sec. 4399 covers all burnings of dwelling houses in the night time, and the punishment is fixed at not more than fourteen years’ nor less than seven years’ imprisonment, except that in case no person was lawfully in the building at the time of the offense the minimum imprisonment may be three years. Sec. 4400 covers all burnings of dwelling houses in the day time, and the burning of any building in the day time by which a dwelling is burned in the night time; and the punishment is fixed at not less than three nor more than ten years’ imprisonment. Here the consideration of offenses against the dwelling house or habitation ceases. All such offenses seem to have been considered fully covered, and attention is then turned in sec. 4401 to several classes of buildings or structures which are not dwelling houses, but still are of considerable importance. These classes are: (1) Public buildings, such as churehes, courthouses, colleges, jails, etc.; (2) steamboats and vessels; (3) banking houses, stores, warehouses, and factories; (4) barns, shops, or offices within' the curtilage of a dwelling house or other building by the burning of which any building named in the section is destroyed. Burnings under this section, if in the night time, are punished by imprison
It is argued on behalf of the state that this last-named section covers by its terms “ any building whatsoever of another” the burning of which is not punishable under sec. 4401; that a dwelling house is a building, and that its burning is not punishable under sec. 4401, and consequently it is included within the terms of sec. 4402. If this contention be well founded, we have, then, two sections of the statute prescribing different punishments for the same offense. Confusion is at once introduced into the law of arson. In case of the felonious burning of an occupied dwelling house in the night time, it will be practically within the power of the prosecuting officer to say: “Although the statute provides a minimum imprisonment of seven years for such an offense, with a possible fifteen years, I will prosecute under she. 4402, and thus render it possible that the imprisonment may be four years only, and cannot be more than eight years.” Was such a result intended? When the legislature so carefully defined the different kinds of arson as to dwellings and fixed varying punishments therefor, can it be possible that they intended that all such offenses might be prosecuted under another section, which was manifestly framed to cover possible omissions, and which prescribes a different penalty? We cannot think so. The difference between the offenses is
It was said in Comm. v. Hayden that the statutory offense of burning a dwelling house does not include within itself the burning of a building which is not a dwelling house. With equal truth it maybe said that the charge of burning a building does not necessarily include within itself the offense of burning a dwelling house. It is not a case of a-higher and lesser offense. The offense charged in the information. does not include the elements of the other, nor do the averments of the information contain any sufficient charge of the burning of a dwelling house. Kilkelly v. State, 43 Wis. 604" court="Wis." date_filed="1878-01-15" href="https://app.midpage.ai/document/kilkelly-v-state-6602472?utm_source=webapp" opinion_id="6602472">43 Wis. 604; State v. Yanta, 71 Wis. 669" court="Wis." date_filed="1888-05-12" href="https://app.midpage.ai/document/state-v-yanta-8182879?utm_source=webapp" opinion_id="8182879">71 Wis. 669.
An opinion contrary to the view we have taken was expressed by the supreme court of Massachusetts in Comm. v. Smith, 151 Mass. 491" court="Mass." date_filed="1890-05-10" href="https://app.midpage.ai/document/commonwealth-v-smith-6423499?utm_source=webapp" opinion_id="6423499">151 Mass. 491. Examination of the case shows that this question was not involved in the case. The question
There is authority, as we have seen, from a deservedly eminent court, for the position taken by the state. The question is certainly a delicate one, and one upon which good lawyers might easily differ in opinion; but, after what we believe to be full and mature consideration, we have reached the conclusions hereinabove' expressed, and believe them to be sound law. The first question propounded, namely, Should the motion for a new trial be granted? must be answered in the affirmative. This renders it unnecessary to answer the second question.
By the Court. — It is so ordered.