By information filed in the .Circuit Court of Pemiscot County, John Ross, Lizzie Ross, his wife, Cotter Henderson, and Harry Henderson, were charged with arson in the second degree, under Section 3284, Revised Statutes 1919, in that they set fire to a barn and storehouse of one Hollis Beard, which store was adjoining a certain inhabited dwelling house of said Beard.
*504 The case was subsequently dismissed as' to the Hendersons, and went to trial against John Ross and Lizzie Ross. Lizzie Ross was acquitted; John Ross was found guilty, and his punishment fixed a.t three years imprisonment in the penitentiary. He appealed.
The evidence offered by the State tended to show that John Ross employed one Gabe Fry and one Henry Hopper to burn the store of Beard; that he furnished them with two sacks filled with grass, and gasoline with which to saturate the stuff, and instructed them how tо set fire to the building. Fry and Hopper were quite young men with criminal records. They went to the store after dark, July 13, 1922, and saturated the saсks of grass with .gasoline, threw them under the building and set fire to them. The fire was discovered and extinguished before any serious damage was done.
The case was made out' for the State almost entirely by the evidence of Fry and Hopper, who testified to their employment by Ross; testified further that Mrs. Ross furnished the gasoline; and related previous conversations between them and Ross, and described how they proceeded to carry out his instructions. They said they were promised $300 by Ross to do the job, who also told them they might first rob the store. The next day Ross gave them six dollars in money and some canned goods to eat, and told them to stay away until the matter sеttled down. They were later captured at Hayti and confessed. At the time of the trial they were serving terms in the penitentiary, having рlead guilty to the charge of arson.
I. The information charged that the building to which the fire was set was adjoining the inhabited dwelling of Hollis Bеard. The evidence showed that it was within the same enclosure, but forty feet away. The Statute, Section 3284, Revised Statutes describing the crime as setting fire to a building “ adjoining to or within the curtilage of an *505 inhabited dwelling house.” The evidence showed that it was not adjoining thе dwelling house, but within the curtilage — a variance between the allegations of the information and the proof. Since the cаse is to be retried the prosecutor may amend the information in that particular.
II. Evidence was offered and admitted by the Stаte to show that while Ross was negotiating with Fry and Hopper, he plied them with whiskey as a re-enforcement to his persuasion. The defendant obd'eeted. to this evidence. We think the evidence was competent for the purpose of showing how and in what manner he induced the boys to commit the crime.
The State then showed by Fry and Hopper that he afterwards gave them whiskey. They werе asked to state where the defendant kept the whiskey hidden in a jug; they -were also asked to describe the kind of house the defеndant lived in, and his manner of life, — evidently for the purpose of showing that he was engaged in the bootlegging business. This occurred after the fire, and tended to prove the defendant was guilty of another crime than the one for which he was on trial, and with which the crime сharged had no connection.
All evidence respecting the defendant’s possession of whiskey and tending to show the bootlegging* business after the fire took place was therefore incompetent and erroneously received.
HI. One Emerson Evans tеstified as a witness for the defense. The State’s attorney, in cross-examination, asked him if he had not been arrested several timеs for bootlegging, and he stated over the objection of defendant that he had been arrested once. This • *¶ evidence was entirely inadmissible, and error is confessed by the State in that respect. [State v. Snow,
IV. Witnesses were produced in evidence to swear that the defendant had a bad reputation for morality. Defendant did not put his reputation in issue, and-assigns error to the admission of that .evidence. A defendant may be impeached as any other witness may be. Since the defendant testified in the.case the State had the right to prove that his reputation for truth and veracity was bad, and also to show that his general reputation for morality was bad, as affecting his credibility. The State, however, had no right to attack his chаracter as a defendant; that is, it had no right to show that bis reputation was bad in the particular respect which would affect his guilt оr innocence of the crime charged. [State v. Edmundson,
V. Complaint is made of an instruction which assumed that the building- to which fire was claimed to have been sеt was the building of Hollis Beard. Since the ownership of 'the building is wholly immaterial there was no error in that particular; the ownership of the building need be neither alleged nor proved. [Sec. 3283, R. S. 1919].
Instruction One, however, is erroneous in authorizing a verdict of guilty if the jury found that the storehouse to which fire was set was adjoining an inhabited *507 dwelling house when there was no evidence upon which to base the instructiоn.
Complaint is made of instruction numbered 4, given on. behalf of the State, which told the jury that the testimony offered for the purpose of showing* the defendant’s reputation for morality should be considered only for the purpose of affecting the defendant’s credibility as a witness, and for no other purpose, and should not be considered as evidence of the defendant’s guilt of the crime сharged. The instruction correctly stated the law in relation to the matter; if it were error the defendant is in no position to cоmplain, because, such error, if any, was in his favor. It is -not a comment upon the evidence; it is always proper for the court- to instruct the jury as to the effect of evidence and the purpose for which it may be received. This is very different from directing thе jury what weight to give the evidence. The case of State v. Carr,
For the reasons mentioned the judgment is reversed and the cause remanded.