Gibson v. State

Bowie, J., delivered the opinion- of the Court. The indictment brought up for review by the writ of error in this case, contains two counts; the first charged that Edward Gibson, the plaintiff in error, “ on the twenty-third of September, 1879, with force and arms, at the county aforesaid, feloniously, wilfully and maliciously did set fire to and hura a certain barn of one George J. Johnson, there situate, contrary to the form of the Act of Assembly,” etc. The second, “ that the said Edward Gibson,, afterwards, on the day and year aforesaid, at the county aforesaid, wilfully did set fire to and burn a certain barn of one George J. Johnson, there situate, the same being an outhouse and not parcel of any dwelling house, and having therein certain country produce, etc., contrary to the form of the Act of Assembly,” etc. The prisoner moved the Court to require the State to elect on which count he should be tried, which motion was overruled. The prisoner then demurred to the indictment generally, and afterwards to the first count of the indictment specifically, which demurrers being overruled, the prisoner pleaded “ not guilty,” and the jury being impannelled, found the prisoner “ guilty of the premises aforesaid in the indictment aforesaid specified,, in manner and form as by the said indictment is above charged upon him ”— whereupon the prisoer moved in arrest of judgment for the following reasons: 1st. Because the jury have found him guilty of a felony, and the offence committed is only a misdemeanor by the laws of Maryland. 2nd.

Because the jury have found the prisoner guilty under the first count of the indictment of a felony, and under the second count of a misdemeanor. The motion in arrest being overruled, the prisoner assigned errors and prayed to have the record sent up. ⁴⁵⁰ The counsel for the prisoner, in their brief, insist that the first count of the indictment is defective, and the-demurrer to it specifically ought to have been sustained. It professes to charge a felony at common law, and is bad in not stating that the barn alleged to have been burned had corn in it, or that it was parcel of a dwelling house, for without one of these two circumstances, to burn a barn is not a felony at common law. Regarded as an indictment under the statute, the count is bad in failing to describe the building as “not parcel of any dwelling house.” Among the offences against property punished by the statute law of this State are arson, and the several modifications of injury by burning, enumerated and described in the Code.

Arson, at common law, consisting generally in the burning of a dwelling, and all outhouses that are a parcel thereof, it became necessary to distinguish it from other offences by burning, to qualify the description of the property by the words “ not parcel of any dwelling house.” The burning of a barn, parcel of a dwelling house, is covered by the section of-the Code punishing arson, that term technically including the burning of such buildings, and no other provision for the punishment of such offences is contained in the Code. This crime, being a felony at common law, must be charged to be done feloniously, etc., and the property described in such terms as to show it is a proper subject of arson at common law. The burning of barns and other outhouses “notparcel of any dwelling house’’ isa distinct and separate offence, described in specific language, and prohibited and punished by sec. 33 of Art. 12 of the Revised Code. That section declares that “ every person who shall be convicted of the crime of wilfully burning any mill, ‘barn’ or other outhouse ‘ not parcel of any dwelling ⁴⁵¹ house,’ being empty, or having therein any tobacco, etc., or other country produce, shall at the discretion of the Court, suffer death, or be punished by confinement in the penitentiary as therein prescribed.” The Acts of Assembly, or the Code, do not qualify this offence by the term “feloniously,” but leave it to the Court to determine its classification whether as a felony or misdemeanor.

It is sufficient to charge statutory offences in the language of the statute creating them. This has become almost an axiom in criminal pleading. Parkinson vs. The State, 14 Md., 198 ; Elborn’s Case, 27 Md., 483 ; Hollohan’s Appeal, 32 Md., 399 ; Wheeler’s Appeal, 42 Md., 563 . The qualifying words in the 33rd sec. of Art. 72 of the Code, describing the nature of the property burned, are so incorporated with the context as not to be separated from it without affecting its meaning.

They operate as an exception as well as a description. When a statute contains an exception so incorporated with its enacting clause that the one cannot be read without the other, the rule of pleading is, that the indictment must negative the exception. Kellenbeck & Brash vs. State, 10 Md., 438 -439; Rawlings vs. State, 2 Md., 211