Johnson v. State , 96 Tex. Crim. 216 ( 1923 )

Concurring in the opinion of Judge Hawkins ordering a new hearing and a reversal of the judgment, the following observations are made upon another phase of the case. In the indictment, the structure which was the subject of the arson is denominated a dipping vat and is therein not otherwise described, save that it is called a building. The statute upon which the prosecution is founded reads thus:

"If any person shall wilfully burn any building, not coming within the description of a house, as defined in the preceding chapter, or shall wilfully burn any stack of corn, hay, fodder, grain or flax, or any pile of boards, lumber or wood, or any fence or other inclosure, the property of another, he shall be punished by confinement in the penitentiary not less than two nor more than five years, or by fine not exceeding two thousand dollars." (Art. 1214, Penal Code.)

In the evidence the vat is thus described:

"This vat is made of concrete, and the body of it is about twelve feet long, with twelve or fifteen foot slope, I mean it slopes up to the surface from the dipping pen, for the cattle to walk out on; the slope is at one end, and the walls come up; the entire length of the vat from end to end is about twenty-six feet, and they slope a little from the bottom to the top, it is not quite as wide at the bottom as it is at the top, and it is about six and a half or seven feet deep. This entire vat, from end to end is built of concrete, and the sides of the vat are made of concrete, and the bottom is also made of concrete; the whole thing is concrete, and it is all connected, the sides, end and bottom; it is all together and the walls are up slightly above the surface to keep the water from running from it. That vat is for the purpose of holding the arsenical dip for the purpose of dipping the cattle; we dip the cattle in it. * * * These vats are built to hold this fluid, or dip. There are no openings to the vat except at the top."

The offense of arson is defined in Chap. 1, Title 17 of the Penal Code as "the wilful burning of any house." A house is defined as "any building, edifice, or structure inclosed with walls and covered." Chap. 2 of the same title denounces "other wilful burning" and contains Article 1214, supra. That the term "building" as embraced in the statute does not include all structures other than a house seems clear from other sections in the chapter which denounce the burning of a ship, boat, vessel, or bridge. See Articles 1215-1217. The meaning of the term "building" has been the subject of judicial inquiry and declaration on many occasions.

"In a statute, the word `building' will most always depend for its meaning in some degree of the particular subject and its connection with other words." (Corpus Juris, Vol. 9, p. 685, note 94; also page 683, note 7.)

Illustrations too numerous to include in this opinion will be found in the notes mentioned. From one of the notes we make the following quotation as embracing what the writer conceives to define the term "building" as it is found in the statute under consideration:

"The words `build' and `building' as a verb and participle, are commonly used as applicable to the erection of numerous structures. * * * Thus, we speak of building bridges, building fences, sidewalks, embankments, etc. But notwithstanding this, we think the word building, as a noun, has a common, well understood meaning, exclusive of structures of this character, and including only those which have a capacity to contain, and are designed for the habitation of man or animals, or the sheltering of property."

In Article 10, P.C., it is said, in substance, that words not specially defined are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed. Construed in the light of this provision of the statute, the Act of the Legislature pertaining to the dipping of cattle and designating the receptacle which is to contain the fluid for dipping as a "vat" does not suggest that the vat and a building are synonymous. A vat as understood in common language and as defined in the dictionary is "a large vessel or tub for holding liquids." The word "building" is thus defined:

"2. That which is built; (a) As now generally used, a fabric or edifice, framed or constructed, designed to stand more or less permanently, and covering a space of land, for use as a dwelling, storehouse, factory, shelter for beasts, or some other useful purpose. `Building' in this sense does not include a mere wall, fence, monument, boarding, or similar structure, though designed for permanent use where it stands; nor a steamboat, ship, or other vessel of navigation."

See Webster's New International Dictionary, pages 288 and 2268.

It is the opinion of the writer that the vat designated in the indictment and in the statute (Acts of Thirty-sixth Legislature, Chap. 44; Acts of Thirty-eighth Legislature, Chap. 141) and described in the evidence in the present case is not a building within the meaning of Article 1214, supra, and that the offense ofdestroying a dipping vat is not punishable under that article but under Article 1235 of the Penal Code, which reads thus:

"If any person shall wilfully and mischievously injure or destroy * * * real or personal property of any description whatever, in such manner as that the injury does not come within the description of any of the offenses against property otherwise provided for by this Code, he shall be punished by fine not exceeding one thousand dollars."