May v. State , 85 Ala. 14 ( 1887 )

CLOPTON, J.

— The defendant is indicted for having willfully set fire to and burned a corn-pen containing corn. In the indictment, the ownership is laid in Flora Davidson, who is a married woman. The land, on which the pen is located, was entered by her husband, who is, and has been for some time, employed at wort in Florida, coming home occasionally. . The wife occupied and cultivated the premises, made and gathered the corn, and had the pen built during his absence. Arson is rather an offense against the possession, than the property, and the possession, not the estate or interest in the property, must be described. — Adams v. State, 62 Ala. 177. Flora Davidson having the actual and rightful possession of the pen, and the premises on which it was situate, and the corn, which was her earnings, being under the statute her separate property, ownership in her was properly laid in the indictment.

The statute, defining arson in the third degree, does not prescribe in express terms its constituents, but merely designates the offense. — Code, 1886, § 3784. In such case, it is not sufficient to follow the words of the statute. The circumstances, which reduce the offense to arson in the third degree, should be averred. The second count of the indictment is defective, but was not objected to by demurrer. The first count contains all that is requisite to constitute arson in the second degree. When an indictment contains two counts, one of which is good, and the other defective, and no demurrer is interposed to the defective count, a general verdict of guilty will be referred to the good count, and the conviction sustained. — Rowland v. State, 55 Ala. 210; Glenn v. State, 60 Ala. 104.

Affirmed.