State v. Avert

MehrimoN, C. J.

after stating the facts: The statute (The Code, § 985, p. 5) as amended by the subsequent statute (Act 1885, ch. 42) provides that “any person who shall wilfully burn or destroy any other person’s corn, cotton, wheat, barley, rye, oats, buckwheat, rice, tobacco, hay, straw, fodder, shucks or other provender in a stack, hill or pen, or secured in any other way, out of doors, grass or sedge standing on the land, shall be guilty of a misdemeanor,” etc. In our judgment, this statute plainly refers to and embraces only cotton and the other things specified therein, not within doors — not-housed and thus secured, as in a barn, gin-house or the like. It refers to cotton and the other things secured in any other way “out of doors” in the field — “on the land” — the farm where they were produced, or some other land, so as in some way secured without doors — without the barn, gin-house or other like enclosure. The words “in a stack, hill or pen,” “ out of doors,” “ the grass or sedge standing on the land,” applied to the several things specified in their connection, are apt and appropriate to refer to and imply such things so situate and secured “out of doors.” The purpose is to protect such things so exposed and imperfectly secured “ out of doors ” in the fields, on the farm “ the land ” of the person who owns or has control of them. In any reasonable view of their meaning, application and connection, they cannot refer to and embrace cotton stored in 'a railroad car standing on a railroad track at a depot, whether to be thus and there secured temporarily or shipped to some other place. Cotton and the other things specified secured in a car on the railroad are not secured in some other way out of doors on the land, in the sense of the statute. When thus secured on the car they have been taken from the place— the land — where they were secured “out of doors” and are on the way to market to be used, or on the way to be again housed or secured in a stack, hill or pen, or in some other way “out of doors.” The burning or destruction of such things on a car does not come within the mischief to be remedied by the statute — the burning or destruction of them when they are ordinarily secured out of doors.

The indictment should appropriately in the' proper connections charge that the cotton or other thing burned or destroyed was in a stack, or as otherwise in a way described secured “ out of doors ” In this case it fails as to matter of substance to charge-the offence defined by the statute. It does not charge, in substance or effect, that the cotton in some way described was secured “out of doors” — it simply charges the burning on the railroad in a railroad car. For the reasons stated this is not sufficient.

It seems that the Legislature supposed and intended that the statute (The Code, § 985, pp. 6, 7), in respect to burning barns, gin-houses and other buildings, would be sufficient to protect grain, cotton and the like stored in them in doors on the land. This appears to be a case in which the defendant might appropriately have been indicted for malicious injury to personal property as defined by the statute (The Code, § 1082), but in no view of the present indictment will it suffice to charge that offence.