Mulligan v. State

White, Presiding Judge.

Appellant was convicted of arson. Two counts were contained in the indictment—one for the burning of a house, and the other for the wilful burning of a “pile of wood the same being a set of house logs.” Defendant’s motion to quash the indictment was sustained as to the second, or the count for wilful burning.

Appellant was the tenant of one Duke, and during his tenancy had erected a crib upon the rented premises, which crib the landlord, Duke, refused to pay for when the parties were having their settlement with a view to the expiration of the lease. Defendant declared time and again that he would burn the crib. About the time he was moving or preparing to move-from the premises he pulled down the crib, and in the night before he moved, the logs of which the crib had been built, and which he had torn down, were set fire to and burned. Two questions present themselves in connection with these facts : First, was a house burnt ? and second, if a house was burnt, could defendant be convicted for burning it when he was still in possession as a tenant of the leased premises upon which it stood ?

“Arson” is defined by our Code to be “the wilful burning of any house included within the meaning of the succeeding article of this chapter.” (Penal Code, art. 651.) The succeeding article-652 defines a house as any building or structure inclosed with walls and covered, whatever may be the materials used for building. (Smith v. The State, 23 Texas Ct. App., 357.)

We think it clear that when the building was torn down, it ceased to be “ a building or structure,” because it had lost the-arrangement of its parts, its form, make and construction. It had no longer the inclosure of walls, and it was no longer covered. It had lost all the essential characteristics of “a house.” The logs might still be called “house logs,” but they ceased to be “a house.” They might perhaps be classed as lumber or wood,, and as such the appellant might perhaps have been prosecuted and convicted for wilfully burning them, under the provision of article 665 of the Penal Code, provided he was at all liable for their destruction.

And this brings us to a consideration of the second proposition, viz: Could defendant be prosecuted and convicted for arson whilst he was still in possession and control of the leased premises upon which the property was situate when destroyed?' At common law “a man could not commit arson of «a house in which he has a lawful claim to abide; as a tenant from year to year or from month to month^ be his term however short; or under an agreement fora lease.” (2 Bish. Crim. Law, 7 Ed., sec. 13.) Mr. Wharton says “a tenant (occupancy being the'test) can not be guilty at common law of arson in burning the property he occupies on lease. On the other hand a landlord, it would seem, may be guilty of arson in burning his house in a tenant’s, possession.” (Whart. Crim. Law, 8 Ed., sec. 836; The State v. Hannett, 54 Vt., 83; same case, 4 Am. Crim. Rep., Gibbons, 38.)

Our statute, Penal Code, article 659, provides for certain exceptions to the rule that even the owner may destroy his own house, one of which is “when there is within it any property belonging to another;” and article 660 expressly declares that “one of the part owners of a house is not permitted to burn it.” Under our statute the tenant during his lease should be considered only a part owner in the house, and the landlord certainly has a property in it which the tenant could not destroy with impunity.

Opinion delivered March 7, 1887.

Still the tenant is the party entitled to the possession, and arson is regarded as an offense against the security of the habitation rather than that of the property and true ownership. But an indictment against an owner or part owner for burning his own house (articles 658, 659 and 660) must allege ownership in the accused, and the particular facts which may bring him within the exceptions as amenable to prosecution. (Fuller v. The State, 8 Texas Ct. App., 501; Willson’s Crim. Forms., 411.) Appellant being a tenant entitled to occupancy and possession, he was at least a part owner and occupied such relation to the premises as in our opinion required that the indictment should have alleged the particular facts making him amenable to prosecution for the arson, in case a house has been burnt by him.

Our conclusions upon the facts and law of the case are, first, that the indictment is insufficient in allegation to warrant the conviction of this defendant, as a tenant, and, second, if the indictment had been sufficient, the evidence totally fails to establish the crime of arson—that is, “the burning of a house”

The judgment is reversed and the cause remanded.

Reversed and remanded.