Kellenbeck v. State

Eccleston, J., delivered the opinion of this court. The building alleged to have been burned is described as ¿‘a certain building used as a brewery for the manufacture of beer.” And the indictment charges, that the traversers, “feloniously, wilfully and unlawfully, did set fire to” the building thus described; “and the same building, used as a brewery for the manufacture of beer as aforesaid, then and there, by such firing as aforesaid, feloniously, wilfully and unlawfully, did burn and consume, contrary to the act of Assembly in such case made and provided,” &c. There are three counts, all being similar, except stating different owners of the property. At the instance of the traversers the case was tried by the court, upon the plea of not guilty, without a jury.

The record states: “Whereupon the court does say that it finds the prisoners guilty of the offence as charged in the third count of the indictment, except the court does not find them guilty of having ‘feloniously’ committed the offence, the court not deeming the offence felony in law. And the court further finds them not guilty on the first and second counts of said indictment.” Upon this finding judgment was passed, by which George ICellenbeck was sentenced to undergo confinement in the penitentiary for seven years and two months, and Andrew Brash for six years and two months. ⁴³⁷ In claiming a reversal of this judgment, it has been argued by the traversers’ counseL that the indictment contains a proper and sufficient statement of all that is essential in a case of arson. That whether the parties were or were not guilty of the charge, could not appear until the proof should be heard. And as it is evident, from the finding of the court, they did not commit the offence as charged, the court had no authority to pass judgment against them for a misdemeanor, under the second clause of the act of 1809, ch. 138, sec. 5.

The traversers therefore claim the right to have the judgment reveised, and insist that the act of 1852, ch. 63, has no application to such a case as this. It prevents the reversal of a judgment, “for any matter or cause which might have been a subject of demurrer to the indictment..” But here, as the indictment, contains all that is necessary to make it valid in a case of arson, there was no ground for a demurrer which could have been used as a defence. And although the State failed to sustain the charge as laid by proof, that, surely, could not. be cause of demurrer, and, consequently, the erroneous judgment ought to be corrected by means of the present, writ of error. It is unnecessary to inquire whether the conclusion of this argument is correct, conceding the premises on which it is based to be true, because there is an error in the premises, in a very important particular.

The indictment is defective, viewing it as charging the crime of arson. The burning is no where alleged to have been done i!-maliciously,” but “feloniously, wilfully and unlawfully.” In describing this offence it is said, in 1 Hale’s Pleas of the Crown, 566: “The felony of arson, or wilful burning of houses, is described by my Lord Coke, ch. 15, page 66, to be the malicious and voluntary burning of the house of another, by night or by day.” And again, on page 569, the same writer says: “It must be a wilful and malicious burning, otherwise it is not felony, but only a trespass.” See, also, 3 Chitty’s Crim. Law, marginal page 1104; 4 Bl. Comm., marginal pages 220, 222; 2 Russell on Crimes, 548, and 2 Last’s Crown Law, 1015.

In reference to how the offence should be charged, it is said, ⁴³⁸ in 2 0East’s Crown Law, ch. 21, sec. 11: “The indictment for arson at common law must lay the offence to have been done wilfully (or voluntarily) and maliciously, as well os> feloniously.” The same language is used in Wharton’s Amer. Crim. Law, 625, (3rd Ed.) And in 1 Hale’s Pleas of the Crown, 567, ch. 49, we find it said: “In cases of wilful burning of houses the indictment runs, Quodfelonnice, voluntarle et malitiose combussit domum, without saying domum mansionalem, as in case of. burglary.” See likewise the note on page 568, “as to the form of the indictment,” especially that