Setting fire to or burning a dwelling house is arson in the first degree, if the house is inhabited, and in the second degree, if it is not inhabited; and is always a felony. — Code, §§ 4336, 4337. Such burning can never, of course, be arson in the third degree, which is a misdemeanor. — Code, § 4340. An indictment charging the burning of a dwelling house, charges also an attempt to burn a dwelling house, for an accomplished burning necessarily includes every element of an abortive attempt — the major offense charged embraces all minor offenses which would be necessarily committed in consummating the major crime — and hence under an indictment for arson of a dwelling house there may be a conviction of an attempt to commit arson of a dwelling house; but, as such indictment does not embrace 'arson in the third degree, it equally cannot embrace an attempt to commit arson in the third degree; and upon it no conviction could be had either for a consummated burning or an attempt under section 4340 of the Code. — James v. State, 104 Ala. 20; Stone v. State, 115 Ala. 121; Lynch v. State, 89 Ala. 18; State v. McFarland, 121 Ala. 45; Gilmore v. State, 99 Ala. 154.
The indictment in this case charges that the defendant set fire to or burned a dwelling house. There was evidence tending to show that the defendant attempted to burn the dwelling house by igniting kerosene which she had poured on lattice work of a porch of the dwelling house, but that the flame wag discovered and extin*5guislied before any part of the house was burned; and on this phase of the evidence the jury returned the following verdict: “We, the jury, find the defendant guilty of an attempt to commit arson;” and upon this verdict there was judgment of felonious attempt to commit arson under section 4338 of the Code, and sentence to the penitentiary for two years. That section provides : “An attempt to commit arson, in either the first or second degree, is a felony punishable, on conviction, by imprisonment in the penitentiary for noit less than two, nor more than five years.” As the indictment involved no charge of an attempt, except, as we have seen, an attempt to commit arson in either the first or second degree, this verdict, when referred, as of course it must be, to the indictment, must he held to be a finding of guilt of an attempt to commit arson in the first or second degree, the felonious attempt denounced by section 4338; and there is no room for the contention of counsel that the verdict was bad for indefiniteness in that it did not find expressly that the attempt was to commit the offense in its first or second degree.
The charges given by 'the court to the effect -that any attempt to commit arson is a misdemeanor were too favorable (to the defendant. Besides no" exception to them were reserved by her. She can take nothing on account of them.
The charring of wood by fire is the burning of it within the meaning of the statutes defining arson as eharged by the court at the request of the solicitor.
No issue in a criminal trial need be proved “beyond doubt or contradiction” for the State. The second charge requested by defendant was, therefore, properly refused.
The action of trial courts upon motions for new trials in criminal cases is not revisable.
Affirmed.