Stoudenmire v. State , 144 Ala. 85 ( 1906 )

HANALSON, J.

The first count in the indictment charges, that defendant 'willfully set fire to or burned a dwelling-house of Mrs. E. A. King, in which there was at the time no human being.

The second count charges, that he set fire to or burned a dwelling of Mag Underwood, etc.

The indictment in its counts attempted to charge arson in the first degree. — Code, § 4336. The form in the Code for arson in the first degree is, “A. B.. willfully set fire to or burned a dwelling house of C. D., in which there was at the time a human being.” For arson in the second degree the form prescribed is, “A. B. willfully set fire to or burned an uninhabited dwelling-house of C. D., in which there was at the time no human being.”— Criminal Code, Forms 6 and 7; § § 4336, 4337 of the Code.

Neither count of the indictment in this case charged arson in the first or second degree. The demurrers interposecl to them pointed out their defects and should have been sustained.

The jury found the defendant guilty of arson in the first degree, and he was accordingly so adjudged, which was also error.

Reversed and remanded.

Dowdell, Anderson and Denson, JJ., concurring.