The indictment charged the defendant with burning a barn then having corn in the same. The jury found a special verdict as follows, to wit: "That the prisoner did burn, as charged in the bill of indictment, a house, sitting on blocks, built of logs and roofed in, with good floor, and door fastened with padlock, 17 feet long by 12 wide, with two rooms, one about three times as large as the other — the small room used for storing the nubbins or refuse corn, to be first fed (456) away to the stock, and at the time of the fire containing 5 or 6 bushels; the other used for storing the peas, oats, or other products of the farm, and containing at the time of the fire 20 or 30 bushels of peas, some fodder, and other things; the said house being situate in the stable lot 27 feet from the stable, with two similarly built houses in the same lot, just back of it — one smaller, used in storing the good corn raised on the farm, and the other, the seed cotton, and say if the court should be of opinion that the said house was a barn, then they find the prisoner guilty of the arson and felony as charged; otherwise, not guilty." *Page 348
The court remarked, in giving his judgment in the case, "The statute is highly penal and must be strictly construed. The purpose of the act was to preserve the crops of corn and grain. The house must be a barn, used in part for storing corn or grain, and must have therein, at the burning, the corn or grain for the storing of which it is used. Peas are not grain. Did the fact, then, that the refuse corn was placed therein, to be first fed to the stock, make it a barn for storing corn? The witnesses speak of it, some as a barn, others a waste-house. The statute being highly penal, the punishment the severest known to our law, the court holds that it is not clearly within the purview of the act. It is, therefore, adjudged that the prisoner be released"; from which judgment the solicitor prayed an appeal to the Supreme Court, which was granted. When this case was before the Court at June Term, 1861, one of the questions presented was whether a building, properly called a barn, was the same with one properly called a crib, and it was decided that it was not, and that, therefore, an indictment for arson in burning a barn with grain in it could not be supported by proof that the building burnt was a crib with grain in it. Upon the new trial which (457) took place in consequence of that decision a special verdict was rendered, in which the building was particularly and minutely described, and it was submitted to the court to decide whether it was a barn or not, within the meaning of the statute. So that, upon the present appeal, that is the only question presented to us.
Arson, at common law, is defined by Lord Coke to be "the malicious and voluntary burning the house of another by night or by day." See 1 Hale P. C., 566.
The house burnt, in order to be a felony, must be a dwelling-house, including, however, all outhouses that were parcel thereof, though not contiguous to it or under the same roof, as, for instance, the barn, stable, cow-house, sheep-house, dairy-house, and mill-house; or if the house were not parcel of the dwelling, it must have been a barn having hay or corn in it. Ibid., 567. In England the offense of burning houses and other property is now provided for by various statutes, among which the most prominent are 7 Will. IV. and 1 Vict., ch. 89 sec. 3, which reenacts, with some variations, 7 and 8 George IV., ch. 30, sec. 2. This statute makes it a felony to burn or set fire to "any house, stable, coach-house, outhouse, warehouse, office, shop, mill, malt-house, hopoast, barn, or granary," etc. In this State, also, the offense of arson depends mainly, if not altogether, upon the statute law. Thus, by section 2, chapter 34, *Page 349 Revised Code, it is made a capital felony to burn, willfully, "any dwelling-house, or any part thereof, or any barn, then having grain or corn in the same, or store, or warehouse, grist- or sawmill house, or any building erected for the purpose of manufacturing any article whatever; and by sections 7 and 30, other provisions are made for the protection from burning of the State house and other public houses, and houses belonging to any incorporated town or company in the State. It will be seen that our statute does not mention several of the kinds of houses embraced in that of Great Britain; as, for instance, outhouses, stables, coach-houses, offices, granaries, and some others. In the construction of the English statute it is settled that it must be proved (458) on the part of the prosecution that the house burnt comes within the meaning of the statute and of the description given in the indictments, and as the statutes are highly penal, the construction of them, in these particulars, is very strict. For cases on the subject, see Roscoe's Crim. Ev., p. 276 et seq. Our statute, upon which the indictment in the present case is founded, is as highly penal as any known to our law, and must, therefore, receive a construction which will prevent the possibility of the prisoner's losing his life for an offense not within the contemplation of the Legislature. He is charged with burning a barn, and the special verdict finds that he burnt a house of the description therein particularly set forth. If such a house be a barn, he is guilty; if not, he is not guilty. In Webster's Dictionary a "barn" is said to be "a covered building for securing grain, hay, flax, and other productions of the earth." Bouvier, in his Law Dictionary, defines it to be "a building on a farm, used to receive the crop, the stabling of animals, and other purposes." The house described in the special verdict certainly does not come within the meaning of either of these definitions; but it does come within the meaning of a crib, which, according to Webster, is a term used in the United States to signify "a small building, raised on posts, for storing Indian corn," or a granary, which, according to same authority, is "a storehouse or repository of grain after it is threshed; a corn-house." We have seen that in the English statute, above referred to, a granary is mentioned as a different house from that of a barn, and we believe that in many parts of this State, and perhaps in the greater part of it, there is a well known distinction between a barn and a granary or a crib, corresponding in the main with the above definitions. Many of the wealthy planters have both kinds of houses, while most of the farmers in moderate circumstances have only one.
Our conclusion is that the building as described in the special verdict was not a barn within the meaning of the statute; and that not being a barn in itself, it was not made so by having been used for keeping the refuse Indian corn, and for storing peas, oats, and (459) *Page 350 other produce of the farm. The statute requires that the house shall be a barn, and shall, besides, have corn or grain in it, to make the burning of it a capital felony.
The judgment in favor of the prisoner upon the special verdict must be
PER CURIAM. Affirmed.
Cited: S. v. Jim, post, 455; S. v. Cherry, 63 N.C. 496.