I am of opinion that the conviction must be reversed. The prisoner was indicted for arson in the first degree, for burning the dwelling house of Caroline Brown in the night-time, there being at the time a human being therein. The proof tended to show that the prisoner set fire to his own store, in which he had goods insured, and that the fire communicated to the house of Brown; and the fact that the latter was a dwelling house, as well as the other fact that there was at the time a human being in it, was assumed upon the trial. If there had been no human being in the house, then the burning of it would have been arson in the third degree. (2 R. S., 667, §4.) But neither in the instruction of the court, nor in the requests of the counsel, was there any suggestion that the case could be brought within that provision. I have no doubt of the correctness of the charge that the prisoner could be convicted of burning the Brown house upon proof that he feloniously fired his own building, and that the fire communicated to the dwelling from it. But the judge charged that he could be convicted of arson in the second degree for burning a shop, &c., adjoining to or within the curtilage of an inhabited dwelling house, so that such house was endangered thereby. (2 R. S., 666, §2.) But this is a distinct offence from that charged, and under an indictment for the one offence the prisoner could not lawfully be convicted of another. The jury at random have convicted the prisoner against the charge and against law, of arson in *248the third degree, hut whether for burning his own property to defraud insurers, or for burning the Brown house, no one knows. The error of the judge was not caused by the blunder of the jury.
Judgment should be reversed.