Arson is the offense; punishment fixed at confinement in the penitentiary for a period of two years.
Arson is defined as the wilful burning of any house. P. C., Art. 1304. The burning is complete when the fire has actually communicated to a house, though it may be neither destroyed nor seriously injured. Art. 1306. Art. 1316 defines an attempt at arson thus:
"Whoever, by any means calculated to effect the object, attempts to commit the offense of arson, etc."
The subject of the offense was a house belonging to C. S. Appell. There was much testimony to the effect that the building was not burned but merely scorched or smoked. Mattresses were burned, and from them the paper pasted on the wall of the house was set on fire but did not burn through. Some testimony appears that the fire went through the wall-paper to the wood on which the paper was pasted. The owner of the house testified that the fire had not interrupted the collection of rent; that the house was not burned; that only the paper on the wall in one of the rooms had been scorched, but not burned through.
By exception to the court's charge and by a special charge the appellant sought to have the court instruct the jury that if from the evidence they believed that the house was simply scorched or smoked an acquittal should result. To such an instruction the appellant was entitled under the law. If the house was not burned it did not come within the purview of the offense of arson. The attempt to burn was a different offense as is indicated above. Upon the subject the decision of this court in Woolsey v. State, 30 Tex.Crim. App. 346, seems directly in point. To the same effect are the following cases: Moore v. State, 51 Tex.Crim. Rep.; Landers v. State,39 Tex. Crim. 671. See also A. L. R., Vol. 1, p. 1168, note.
For the reasons stated, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 441