My brethren have concluded that the explosion of a building other than a house is not a wilful burning as defined in Chapter 2, Title 17, of our Penal Code, and that there being no statute which in terms makes the explosion of a dipping vat an offense, this case must be reversed and remanded. My respect for them has induced an earnest but unsuccessful effort to agree with their conclusion.
That a dipping vat such as described in the testimony herein is a building within the contemplation of our statute against unlawful burnings seems to me too clear for serious dispute. Its description is set out in our original opinion. It is averred in the indictment to be "A building there situate, the same not being enclosed with walls and covered, towit: a dipping vat." The insertion of the name "dipping vat" detracts nothing from the force of the allegation that the structure is a building and but makes necessary proof of the fact that said building was in fact known and designated as a dipping vat. Calling it a dipping vat would not affect the character of the building. It might be a house with walls and roof, — or a building without roof, and yet be a dipping vat. In addition to what was said in our original opinion I further state that in Webster's International Dictionary, p. 288, a building is defined as "that which is built; (a) As now generally used, a fabric or edifice, framed or constructed, designed to stand more or less permanently, and covering a space of land, for use as a dwelling, storehouse, factory, shelter for beats, or some other useful purpose." Also from a note in Corpus Juris, vol. 9, page 685, — quoting from a Wisconsin case, I take the following: "We think the word building, as a noun, has a common, well understood meaning, exclusive of structures of this character, and including only those which have a capacity to contain, and are designed for the habitation of man or animals, or the sheltering of property." Mr. Bouvier in his legal dictionary defines a building as "An edifice, erected by art, and fixed upon or over the soil, composed of brick, marble, wood or other proper substance, connected together, and designed for use in the position in which it is so fixed." Many *Page 227 descriptions of buildings appear on page 686, Vol. 9, Corpus Juris, wherein the structures appear to lack many of the elements of a building which the dipping vat in question possesses. That a cement structure such as is herein described would shelter property, — serve a useful purpose, — is an edifice covering land, permanently put together, etc., is beyond contradiction. It seems to me that a stone or wooden silo, cistern or oil tank is necessarily a building within the meaning of our arson statute and the statutes against unlawful burnings, and if same had a roof it would be a house within the meaning of Art. 1201, P.C.
I pass to the other question of difference between by Brethren and myself, viz: Is the explosion of the various properties named in Arts. 1214, 1215 and 1217 of Chapter 2, Title 17, punishable under those statutes? All the provisions of said chapters one and two, Title 17 from Arts. 1200 to 1216 inclusive seem to have been written at the same time, but Art. 1217 relating to the burning of bridges was amended in 1858. Art. 1203 so written is as follows:
"It is of no consequence by what means the fire is communicated to a house, if the burning is with design. It may be by setting fire to any combustible material communicating therewith, by an explosion, or by any other means."
Later comes Art. 1205 which is as follows:
"The explosion of a house by means of gunpowder, or other explosive matter, comes within the meaning of arson."
Art. 1206 is as follows:
"A house, blown up or otherwise destroyed for the purpose of saving another house from fire, is not within the meaning of arson."
Analyzing the language of Art. 1205 we see it does not say that the explosion of a house . . . shall be called arson, nor that such explosion should be punished as arson, but it does say that the explosion of a house . . . comes within the meaning of arson. I further observe that Art. 1200 defines arson as the wilful burning of any house, and that Art. 1205 says in express terms that arson means also the explosion of a house. Hence one is the legal equivalent of the other and a definition of arson is the explosion of a house. Arts. 1200, 1205 and 1206 are the only articles in Chapter 1, the arson chapter, which contain definitions. The other articles of said chapter contain rules. Passing to Art. 1213, the opening article of Chapter 2 of said Title, we note that it says in plain words that the "rules and definitions" contained in the preceding chapter (the arson chapter) shall apply to wilful burnings under the provisions of said Chapter 2 unless clearly inapplicable. None of the rules or definitions contained in Chapter 1 are repeated in words in Chapter 2 of said Title, the reason for this being that Art. 1213 carries forward each rule and definition in Chapter 1 into Chapter 2 and there utilizes and makes applicable said rules and definitions unless clearly *Page 228 inapplicable. It is as though it said: "Whatever is arson by definition, or whatever rule applies in arson prosecutions under Chapter 1 applies in Chapter 2, unless clearly inapplicable. Why use the words "and definitions" in Art. 1213 if my Brethren be correct? If they be right there would then be no definitions to carry forward and apply. Noting Arts. 1205-6, we observe that they express one the affirmative and the other the partial negative of the same definition, and unless the writers of the law intended them to have application to Chapter 2, they wasted words in writing Art. 1213 in so far as they directed the bringing forward of the definitions of Chapter 1 and applying them to Chapter 2. Have the definitions of Arts. 1205-6 application to those things set out in Chapter 2? I assert that they have. Not only are they not clearly inapplicable, but on the contrary it appears to me that they are clearly applicable. Can a building other than a house, a stack of corn, hay, fodder, a pile of boards, lumber or wood, a ship or other vessel, a boat or a bridge, be exploded and thus destroyed by dynamite or gunpowder? Beyond question. Being a little lower in the scale of creation and use, not being primarily for the occupance of human beings, we can understand how their destruction by fire or explosion would be deemed less penal than similar destruction of a house, but if their destruction by fire be made penal in a chapter following one in which the destruction of a house by explosion is made to mean the same thing as its destruction by fire, — and in which this is the only affirmative definition, and there be the plain command to make all definitions in said former chapter apply to the latter, — I feel myself impelled to give effect to what seems the natural and logical construction of the words and terms used. If blowing up a house is arson and gravely penal, — a house being a building with walls and roof, — reason would seem to dictate that the blowing up of a building not a house because lacking either walls or roof, would be an offense with the same elements and constituents but perhaps less in punishment. My conclusion is in accord with this reason. If the blowing up of a house be a crime, — a house being a structure with walls and roof, — logic would argue irresistibly that it would be a crime to blow up a ship, a bridge or a building which only lacked either walls or roof. My position upholds this conclusion of logic.
I can not follow by Brethren when they say in reference to Art. 1205, supra:
"The effect of this article was to create a new offense, call it arson and punish it as such which otherwise would not have been arson under the law, unless fire was communicated to the house by means of the explosion. This court recognized such to be the case in Landers v. State, 39 Tex.Crim. Rep., 47 S.W. Rep. 1008, which held that unless fire was communicated to the house by the explosion the prosecution should not have been under the arson statute (Art. 1200 P.C.), but under the explosion statute (Art. 1205 P.C.). *Page 229
This seems predicated on the idea that after the law of arson was written some other Legislature engrafted a foreign proposition into the law and "called it arson" and "punished it as arson," when it was not in fact a part of the law of arson. I have already called attention to the fact that all this arson chapter and most of Chapter 2 were written at the same time. I do not care to attempt to show the scientific kinship between the principles of explosions and fires as a reason for the two definitions of arson above discussed, but content myself with repeating the statement that both definitions were written by the Legislature at the same time in Chapter 1, Title 17, and that the Act denominated arson in one definition applies equally with the others to the offenses mentioned in Chapter 2 of said title, and that we are commanded by legislative authority to apply them. Nor can I agree at all with the statement of my Brethren that the Landers case, 39 Tex.Crim. Rep., recognizes or in any way states that by Art. 1205, supra, the Legislature created a new offense, "called it arson" and "punished it as such," when under the law it was not arson unless fire was communicated to the house by means of the explosion. There is nothing in the Landers' case to call for such announcement. The indictment therein was for arson by setting fire to a house. Apparently the proof was of a fire caused by an explosion. The contention was made that the only fire proven was in certain parts of the roof detached from the house by the explosion, and we held error the refusal of a special charge calling attention to the fact that under the form of indictment in that case the explosion of the house would not be arson unless the fire was communicated to the house. The opinion states clearly that while under the statute the explosion of a house comes within the meaning of arson, the indictment was not drawn under the explosion article, and that the special charge mentioned was appropriate under the facts and the form of the indictment used. There is nothing in the opinion in said case which authorizes the conclusion that the explosion of a house is not as much arson within the original contemplation of the Legislature as its being burned by fire, or that one who explodes a house may not be prosecuted for arson. The contrary is true.
As I understand it the only distinction made or intended under Chapters 1 and 2 of Title 17 between arson and other unlawful burnings, is that one applies to a house, the other to buildings, etc., not houses. There is no difference made or intended in the rules and definitions as to the manner of the destruction of the property. So believing and that there was no error in the charge of the court for which reversal is made necessary, I most respectfully record my dissent for the reasons above stated. *Page 230