Commonwealth v. Brooks , 164 Mass. 397 ( 1895 )

Knowlton, J.

The building which the defendant was found guilty of burning, under Pub. Sts. c. 203, § 1, was a dwelling-house standing on land of Mary A. Burt. She and the defendant were not married, but they lived together in this house as husband and wife, with their children. The only exception in the case is to the refusal of the presiding justice to direct a verdict for the defendant on the ground that there was no evidence to sustain the allegation of property in Mary A. Burt.

The great weight of the evidence was in favor of the Commonwealth’s contention that she owned the building, and it is doubtful whether there was any evidence which would have warranted a finding that the defendant owned it.^* It is entirely clear that the judge could not properly give the instructions requested. Webster v. Potter, 105 Mass. 414. Madigan v. McCarthy, 108 Mass. 376. Westgate v. Wixon, 128 Mass. 304. Howard v. Fessenden, 14 Allen, 124. Poor v. Oakman, 104 Mass. 309.

Exceptions overruled.

* The bill of exceptions recited that the defendant built the house on the woman’s land with her permission; that the lumber and other materials therefor were bought in the name of both, and paid for from the proceeds of a joint and several note signed by the defendant and Mary A. Burt under the name of Mary A. Brooks, which note was unpaid at the time of the fire, and that after completion the house was occupied by the defendant and Burt, although still unmarried, until the day of the fire.