The’opinion of the court was delivered by
Ross, J.The indictment charges the respondent with having set fire to and burned “ a certain barn of one Bradley Barlow,” *37* * “ it being an outbuilding adjoining the dwelling house of the said Bradley Barlow,” contrary to the statute, etc. The entire charge in the .indictment, if proven, was an offense against sec 4126, R. L., as amended by tire act of 1882. If that part of the charge which relates to the barn being an outbuilding adjoining the dwelling house of Bradley Barlow, can be rejected as surplusage, or if a conviction can be had for burning the barn alone, under this indictment, then it may be treated as an indictment under sec. 4128, R. L. Whether a conviction can be had under this indictment for the lesser offense is the principal question in the case. The charge of the court, as well as the evidence, was appropriate to such conviction; but evidently erroneous for a conviction under the former section. To entitle the State to a conviction under the former section, it was incumbent upon it to establish that the building, which had formerly been used for a dwelling house upon the premises, on which the barn consumed stood at the time of the fire had not ceased to be a dwelling house. This is shown by all the authorities cited by the respondent’s counsel. The evidence fell short of .establishing such use of the building. If the case was to be submitted to the' jury, as coming alone under sec. 4126 as amended, the requests of the resporident’s counsel, which were not complied with, were pertinent, and should have received the attention of the court. But it is evident that the court Ireated the case proved, as establishing the lesser offense, that of burning the barn, without regard to its relation to the other building denominated the dwelling house of Mr. Barlow. The court told the jury, that, in order to convict, they must find that the respondent purposely and wilfully, not accidentally, set the fire, and that the barn was the property of Mr. Barlow as alleged. This was a substantial compliance with the respondent’s first and second requests, and such a charge in substance as the case called for, if a conviction for burning the barn simply could be had under the indictment. It is to be presumed, in the absence of any statement to the contrary, that the court properly instructed the jury to return a verdict for the lesser offense charged, if they *38should find the respondent guilty of any offense under the indictment ; and that the jury found the respondent guilty of the lesser offense. The sentence imposed is in accordance with such a verdict. Hence, it is seen, that the one contention is, whether under the indictment a conviction can be had for the lesser offense, or against sec. 4128, R. L. In note 1 to page 387 Arch. Cr. Pr. & PL, it is said: “ Rut it is a general rule which runs through the whole criminal law, that it is sufficient to prove so much of the indictment as proves the defendent to have been guilty of a substantial crime therein stated, though not to the full extent charged against him.” Again in the text, p. 388: “ But where a felony is made additionally penal by statute, if committed at a particular time or place, or under particular circumstances, then if the time or place, or circumstances be not proved, the offender may still be convicted of the simple felony.” * * “So in all cases of offenses, which, either at common law or by statute, include others of a less degree of enormity, if you fail to prove -the greater offense but prove the less, the defendant may be convicted of the latter.”
Neither the principle embodied in the quotations, nor its application, is new or unfamiliar in the judicial administration of the criminal law of this State. 'It was applied in State v. Downer et al., 8 Vt. 434; in State v. Burt et al., 25 Vt. 373; in State v. Carpenter, 54 Vt. 551, and in many other cases. Applying this principle to the case at bar, no error is apparent in the charge or failure to charge by the County Court.
Its application also shows that the motion in arrest was properly overruled. .That motion is predicated, substantially, upon the same grounds as the claimed errors in the charge, and refusal to charge. Besides, on its face the indictment was sufficient. An insufficiency in the evidence to sustain a conviction for the greater offense could not be reached by a motion in arrest of judgment. Such motions are addressed to errors apparent upon .the face of the record. . • .
The result is that judgment is rendered that the respondent takes nothing by his exceptions.