Cochrane v. State

Le Grand, C. J., delivered the opinion of this court. This case comes before us on a writ of error. It appears from the record that John Cochrane and a certain George Knight, junior, were charged by indictment, found by the grand jury of Howard county, in these words: that they “feloniously, unlawfully and maliciously did set fire to a certain dwelling of William P. Adams." The plaintiff in error was arrested, arraigned and pleaded not guilty, in the circuit court for Howard county; after which, on his suggestion that he could not have a fair trial in Howard county, the case was removed to the circuit court for Anne Arundel county. When the case came on for trial in the circuit court of Anne Arundel county, the prisoner asked leave to withdraw his plea of not guilty, and to interpose a demurrer to the indictment.

This the court granted on the condition that the prisoner would pay the costs. This the prisoner failed to do, but tendered his demurrer which was refused by the court, and the case ⁴⁰⁵ was tried before the jury on the plea of not guilty, and the prisoner was found guilty. A motion in arrest of judgment was made and overruled, and the prisoner sentenced to confinement in the penitentiary house, for the period of five years and seven months. Although, strictly speaking, the refusal of the circuit court to allow of the withdrawal of the plea of not guilty, and to permit the prisoner to demur to the indictment, is the only inquiry presented to us under this record, yet, inasmuch as the sufficiency of the indictment has been fully discussed before us, and as the party will have to be tried over again, we deem it proper for us to express our opinion in regard to it.

We have no doubt that the indictment was defective in not averring that the house was burned. At common law', neither an intention nor an actual attempt to burn a house will amount to a felony, if no part be burned. 1 Hawk., ch. 39, sec. 4. 5 East P. C., 1020. See also, the case of Howel vs. Commonwealth, 5 Grattan, for a discussion of the difference in meaning between the words, “set fire to,” and, “burn.” And in the 4th Book of Black stone’s Com., 222, it is said, “as to what shall be burning, so as to amount to arson, abare intent, or attempt to do it by actually setting fire to a house, unless it absolutely burns, does not fall within the description of incendit et combussit; which w'ere words necessary in the days of law-latin to all indictments of this sort.” Our statute of 1809, ch. 138, only provides for the punishment of the crime of arson without defining it. It is, therefore, left as it stood at common law'.

Prior to the act of 1852, ch. 63, such an omission as in this case could have been availed of by a motion in arrest of judgment, as well as by a demurrer to the indictment. Since the passage of that act however, we are of opinion, that “no judgment upon any indictment for any felony or