State v. . McCarter , 98 N.C. 637 ( 1887 )

The prisoner is charged in the indictment with the common-law offense of arson, perpetrated by him in the burning of a dwelling-house. This crime is defined to be the wilful and malicious burning of the house of another person. An essential requisite of it is, that the house burned shall be that of some person other than the offender, and this constituent fact must be charged in the proper connection in the indictment, else the offense will not be charged; and moreover, it must be charged with such reasonable certainty and precision as that the court can see from the record that the crime, and the particular crime, is charged; and so, also, that the prisoner can see and understand the same, and have such information in respect thereto as will enable him to make his defense, if he have any; and so also, if he shall be indicted a second time for the same offense, he can plead successfully his former acquittal or conviction, as the case may be. This rule is just and reasonable — essential, applied in some way, in the course of intelligent criminal procedure.

Now, the indictment in this case charges, not in every technical language, but intelligently and in substance, that the house charged to have been burned was the property of a particular person named, "and in the possession" of another particular person named. The ownership, and the manner of the ownership, are charged. The charge of the fact is intelligible — it designates with greater certainty and precision the house charged to have been burned than if it had simply charged that it was the dwelling-house of the owner of the fee-simple estate in the land on which it was situate, or of him who temporarily (640) resided on it as the tenant of the owner or otherwise. The court could see, and the prisoner could see, whose house, and what particular house, the latter was charged with having burned. The charge, as made, served every just and reasonable purpose of the law, and could not work prejudice to the prisoner, in any respect, in making his defense, or in defending himself in case of a subsequent indictment for the same offense. It does not charge the distinct ownership of two distinct persons — it is not confused, confusing and misleading — it simply describes one ownership. The charge thus made was capable of proof, and the burden was on the State to prove it as made. It might have been easier for the prosecution to make the necessary proof if the indictment had charged the property in the house in one count as that of the owner of the fee-simple estate in the land, and in a second count as that of the tenant or person in the actual possession; but as it could, and did, make proof of the charge as made, the prisoner had no just ground of complaint on this account. As we have seen, the offense charged is arson at the common law, and hence it was not necessary to charge an intent to injure a particular person otherwise than an intent is implied in the charge that the burning was done wilfully and maliciously. It must be proved that the burning was both wilful and malicious. It is sufficient thus to prove the felonious intent.

It is only where a statute makes the particular intent an ingredient of the offense of burning, that it must be charged and proved as charged.

We are, therefore, of opinion that the motion in arrest of judgment was property disallowed.

After the nature of the offense and the punishment thereof had been commented upon in the argument; to the jury, the court cautioned them not to allow prejudice to weigh against the prisoner, and in that connection simply spoke of the offense charged as "dastardly."

(641) This remark was not made in a spirit or tone of unfriendliness or hostility towards the prisoner — it does not so appear, and the expression did not, in its nature, tend to prejudice him before the jury, nor does it appear that it did, in the least degree, so that the exception, in this respect, cannot be sustained.

We have carefully examined the record and discover no error therein. The judgment must, therefore, be affirmed.

Judgment affirmed.

Cited: S. v. R. R., 122 N.C. 1062.