States v. Keena , 63 Conn. 329 ( 1893 )

Every information for a criminal offense must set forth all the essential ingredients of the crime charged with reasonable certainty. If it fails to do this it is bad on demurrer or on a motion to arrest the judgmentState v. Costello, 62 Conn., 128.

The essential ingredients of the crime of arson are, the voluntary and malicious burning of an occupied dwelling house; and that the house be the house of another than the accused. 2 Swift's Dig., side p. 304; Coke, 3d Institute, 66. From these elements it appears that arson is an offense against the security of a dwelling house as such, and not against the building as property. It has regard to the occupation instead of the ownership; or rather, in the contemplation of this offense, the occupier is the owner.State v. Toole, 29 Conn., 342;State v. McGowan, 20 Conn., 245, 246;Snyder v. The People, 26 Mich., 106. And so essential is it to the idea of arson that the house burned be the house of another, that one does not commit this crime by burning the house occupied by himself.State v. Lyon, 12 Conn., 487;State v. Fish, 27 N. Ter. Law, 323;Breeme's Case, 2 East's P. C, 1026;Sullivan v. The State, 5 S. P., (Ala.,) 175; Bloss v. Tobey, 2 Pick., 320, 325.

Counsel for the accused urge that the present information is bad because it does not give the name of any occupier of the house burned. They expend the principal force of their argument in seeking to show that as there is no name of an occupier given it does not appear that the house was an occupied one. Whether or not they are correct in that argument we have no occasion to decide. For another reason we think the omission to state the name of the occupier of the house renders the information fatally defective. It does not appear that the house burned was the house of another than the accused. In this particular the name of the occupier is a necessary averment. Either the name of the occupier must be stated, or there must be other averments from which it is made to appear that the house burned is the house of another person. In this information there are no such averments. Without them it is clearly bad because it does not charge the crime of arson. And it is a defect which is not cured by the verdict.

"It is a general rule of pleading at common law — and upon a question of pleading at common law there is no distinction between civil and criminal cases — that where an averment which is necessary for the support of the pleadings is imperfectly stated, and the verdict on an issue involving that averment is found, if it appears to the court after verdict that the verdict could not have been found on this issue without proof of this averment, there, after verdict, the defective averment which might been bad on demurrer is cured by the verdict." Heyman v. The Queen, L R., 8 Queen's Bench, 102. "The expression `cured by verdict' signifies that the court will after a verdict presume that the particular thing omitted or defectively stated in the pleadings was duly proved at the trial. And such intendment must arise not merely from the verdict but from the united effect of the verdict and the issue upon which the verdict was given. And the particular thing which is presumed to have been proved must always be such as can be implied from the allegations of the record by fair and reasonable intendment." Jackson v. Peshed, 1 M. S., 234.

The other errors assigned are immaterial. In overruling the motion in arrest of judgment the Superior Court erred, and the judgment is reversed.

In this opinion the other judges concurred.