delivered the opinion of the court,
The single assignment of errror in this case involves the proper construction of the 137th section of the penal code. The plaintiff in error was convicted of arson in setting fire to a barn. Upon the trial below his counsel asked'the court to instruct the jury “ that if they believe from the evidence that the barn mentioned in the indictment was located at some distance from the dwelling-house, not adjoining nor parcel thereof, nor connected therewith by any intervening structure, and that the dwelling-house was not burned by the burning of the barn, the defendant cannot be convicted under this indictment.” The court answered the point as follows: “We decline to charge you as requested in this point. We say to you that if you find that the barn which was destroyed was a part of the necessary buildings used on the Barclay farm, and was so situated that its destruction by fire would endanger the dwelling-house on the *195same premises, then the barn ‘ belonged ’ to the dwelling-house as contemplated by the 137th section of our penal code.”
The dwelling-house was not burned, and it was contended that for this reason the plaintiff could not be properly convicted under the 137th section, which refers to felonious arson, but should have been indicted under the 138th section, which defines a lower grade of burning and punishes it as a misdemeanor only.
A careful consideration of the 137th section leads us to the conclusion that the learned judge of the court below was correct in his ruling. The section referred to defines and punishes three classes of felonious arson, viz.: 1. The burning of or setting-fire to any factory, mill or dwelling-house of another; 2. The burning of or setting fire to any kitchen, shop, barn, stable or other outhouse that is parcel of such dwelling, or belonging, or adjoining thereto; and, 3. The setting fire to or burning of any other building by means whereof a dwelling-house shall' be burned. In the cases mentioned in the last class, viz.: “ any other building,” that is to say, other than those enumerated-in the first and second classes, it would be necessary, in order to convict, to aver and prove that a dwelling-house had been burned by means of the particular act charged against the defendant. It is manifest the words “ by means whereof a dwelling-house shall be burned,” have no application to the first class, as dwelling houses are included in that' class. We think it equally clear that they do not apply to the second class. This class comprises only such buildings the burning of which by reason of their proximity to a dwelling-house would endanger the safety of the latter. They must be “parcel of such dwelling or belonging or adjoining thereto.” This language is explicit. The legislature have employed apt words to express their meaning. It was intended to reach just such a case as this. As farm buildings are constructed in this state it is seldom the barn adjoins the house; it may not even be parcel of it; but the word “ belonging ” is comprehensive, and includes all barns so near a dwelling-house on the same premises as to endanger the safety of such house in case of fire. The burning of any building so situated as to endanger a dwelling-house was felonious arson at common law: Wharton’s Criminal Law (8th ed.) § 825. This was always a serious offense, and we are not to presume, in the absence of such clearly expressed intent, that the legislature intended to reduce it to the grade of a misdemeanor.
This view is not in conflict with the 138th section, which makes the burning of barns, stables and other buildings not parcel of a dwelling house, a misdemeanor. This section was manifestly intended to provide for the burning of a barn that is not parcel of a dwelling-house, nor belonging, nor adjoining *196thereto, and which is so situated as not to endanger a dwelling-house. Thus considered the two sections are harmonious.
Judgment affirmed.