The indictment in this case charges a conspiracy between defendant and one Banks “to unlawfully and willfully set fire to or burn a corn crib, containing corn, said corn crib being the property of Fayette Allrid,” etc. It is arson in the second degree to burn any corn crib whether it contains corn or not, or any corn pen containing corn. — Code of 1886, § 3781; Cook v. State, 83 Ala. 62. If we hold that the terms “corn crib containing corn” includes a “corn pen containing corn,” in line with the decision just cited, the indictment would be bad, it would seem, on the ground taken by the demurrer that it fails to allege the ownership of the corn. — Smoke v. The State, 87 Ala. 143.
But there is a more important question in the case. It is whether the building which Thomas and Banks are alleged to have conspired to burn was either a corn crib, or a corn pen containing corn, within the meaning of the statute. We do .not think it was either. The evidence shows that it was a cabin for the habitation of tenants, with chimney, door and windows and all the other characteristics of, a cabin or dwelling house, that it has always been used for' human habitation up to within a month or two before the attempt to burn it, and that being then untenanted, the owner deposited there some corn and forage which continued in the building up to the time of the alleged offense. The words “corn crib” and “corn pen” have well understood and definite meanings. Everybody understands what a corn crib is and what a corn pen is, and nobody would speak of a dwelling house of even the humble class, called cabins, as either a corn pen or corn crib- though it should be temporarily used for the storage of corn. And we conclude *463that the evidence did not sustain the averment of the indictment that defendant and Banks conspired to burn a corn crib containing corn; there was a fatal variance between the allegation and the proof; and the affirmative charge asked by defendant should have been
Beversed and remanded.