(December Term, 1859.)
1. In an indictment for arson, under sec. 2, ch. 34, Rev. Code, a house built for and at one time occupied as a dwelling-house, but untenanted at the time of the burning, is not within the meaning of that act.
2. Where, upon a charge for arson, a special verdict was rendered finding that the defendant did wilfully and maliciously burn a dwelling-house, which was at the time uninhabited, the court can proceed to judgment as for a misdemeanor, under sec. 103, ch. 34, Rev. Code.
ARSON, tried before Heath, J., at Fall Term, 1859, of GASTON.
Attorney-General for the State.
Thompson for defendant.
The house which the defendant was charged with burning was built for a dwelling-house, and had once been occupied as such, but was untenanted at the time of the burning. Under a charge from the court upon the facts, the jury found a special verdict as follows: "That John F. Clark, the prisoner at the bar, is guilty, wilfully and maliciously, of burning the dwelling-house in manner and form as charged in the bill of indictment; but that said dwelling-house, when burned, was an uninhabited house, though it was built as a dwelling-house, and had before that time been inhabited." Upon this verdict, judgment was directed to be entered for the defendant. Appeal by the State.
There are several considerations which bring our minds to the conclusion that "dwelling-house" in the section of the statute under which this indictment is framed means an inhabited house.
An adequate reason for so high a penalty is only to be found in the supposition that the Legislature intended to restrict it to inhabited houses.
We find it grouped with other buildings, such as a barn with grain in it, mills and manufactories, which are of special value on (168) account of their contents, and on that account, as we suppose, are all put upon the same penal footing. And we find the Legislature, in section 103 of the same chapter of The Code, providing that the burning of " uninhabited houses" shall be a misdemeanor only.
By a reference to this last section it will be perceived, by necessary implication from the context, that the uninhabited house spoken of is a house that is fitted for habitation, but is unoccupied at the time. These considerations, taken in connection with the rule of construction that penal statutes, and especially highly penal ones, are to be strictly interpreted, conduct our mind, clearly, to the conclusion above announced.
We concur, therefore, with his Honor below, that judgment of death cannot be pronounced upon the special verdict of the jury, but we are of opinion that judgment may be pronounced against defendant as for a misdemeanor. S. v. Upchurch, 31 N.C. 454.
The interpretation which we thus give to the phrase, "dwelling-house," puts the section in harmony with itself, with other parts of the chapter, and with the whole frame of our jurisprudence. Give it a different construction, and allow the phrase in question to embrace the entire class of houses fitted for human residence, whether occupied or not, and it is neither humane nor consistent. Ample reasons are found in a sound public policy, and in the peculiar jealousies of our people for protecting the house which is the home of the citizen by the highest penalties of the law. No good reason can be found for throwing this guard about an uninhabited tenement. The judgment below is reversed, and this opinion must be certified, to the end that that court may proceed to judgment and sentence agreeably to the decision of this Court and the laws of the State.
PER CURIAM. Reversed.
Cited: S. v. Goldston, 103 N.C. 326; S. v. Lumber Co., 153 N.C. 613.