This is a motion for a new trial, on the part of the prisoner, on the ground that the verdict is without, *489and contrary to evidence. The information on which he was convicted, is brought on the 3'2d section of the Crimes act, tit. 21 .p. 125., (ed. 1835.) which enacts, that “every person who shall wilfully burn, being the property of another, any ship or other vessel, any office, store, shop, &c., on conviction thereof, shall suffer imprisonment in the Connecticut state prison, for a term not less than two, nor more than five years.’’
To constitute an offence under this statute, the building must be the property of another. It is not indeed required, that the absolute title or entire interest should be in the person named in the information as the party injured ; for such a possession, as gives a special property, while it exists, is suflicient. It is essential to the crime of arson at common law, that the burning should be of the house or out-house of another ; and in indictments or informations for that offence, as well as for the one of which this prisoner was convicted, it is necessary to aver ownership in another, and to prove the averment as laid. It is important to enable the defendant to prepare his defence, and to plead autrefois acquit, or autrefois convict, to another prosecution for the same offence. Rex v. Breeme, Leach's C. L. 261. Rex v. Rickman, 2 East's P. C. 1034. Rex v. Glandfield, Ib. Rex v. Norton, R. & R. 510. Rex v. Clark, Id. 358. Rex v. Daley, 4 C. & P. 579. Rex v. Peace, 3 B. & A. 579. Rex v. Smyth & al. 5 C. Sp P. 201. 2 East’s P. C. 651. 781. 2 Hawk. P. C. 25. pp. 71, 72. Commonwealth v. Mahar, 16 Pick. R. 120.
The principles which govern the discretion of this court, in granting, or refusing new trials for verdicts against evidence, are fully explained in the late cases of Lafflin v. Pomeroy, 11 Conn. Rep. 440., and Bacon v. Parker, 12 Conn. Rep. 212.; and in their application to the case before us, it is sufficient to remark, that the power to grant a new trial may be exercised, when the verdict is without evidence, or manifestly against the weight of evidence.
It is quite clear, that the conviction upon the first count in this information was without the slightest proof of the ownership of the shop as alleged; for it appears no evidence whatever was offered in support of this averment. The verdict cannot, therefore, be sustained on this count.
And we think the evidence introduced to support the second count, was wholly insufficient to justify a conviction. There *490was certainly no proof that Beers was the absolute owner of the shop; and the evidence that he was in possession, is slight and very inconclusive. It is inferred simply from the fact that one of the witnesses was employed at work in the shop, by Beers. This, however, is entirely consistent with the supposition that another person was in possession ; for Beers might have sent the witness to labour for him, in a shop occupied by his friend or neighbour. Besides, the prisoner was at work at the same time, in the same shop, in the employment of Uriah Seymour ; and if the employment is sufficient evidence that Beers was in possession, it is equally strong evidence that Seymour also was in possession ; and thus the testimony would prove an occupancy or possession by Beers and Seymouri while the information alleges the property or possession of the shop to be in Beers and Ward Nichols.
If, however, it be admitted, there was some evidence of a lawful possession by Beers, it is certain there was none conducing to prove such a possession in Beers and Nichols. No witness testified, that Nichols had any interest in the shop, or in any manner occupied it. His name is not connected with any testimony exhibited on the trial. The conviction, therefore, on the second count, which describes Nichols as one of the owners of the shop, was as clearly without evidence, as was the conviction on the first count, which describes the shop as the property of Beers and Nichols, trustees of Sammis and Collins. Any further illustration or argument in this case, seems unnecessary. We are all satisfied the conviction was wrong; and consequently, advise a new trial.
In this opinion the other Judges concurred.New trial to be granted.