delivered the opinion of this court.
This case comes before us on a writ of error. It appears from the record that John Cochrane and a certain George Knight, junior, were charged by indictment, found by the grand jury of Howard county, in these words: that they “feloniously, unlawfully and maliciously did set fire to a certain dwelling of William P. Adams." The plaintiff in error was arrested, arraigned and pleaded not guilty, in the circuit court for Howard county; after which, on his suggestion that he could not have a fair trial in Howard county, the case was removed to the circuit court for Anne Arundel county.
When the case came on for trial in the circuit court of Anne Arundel county, the prisoner asked leave to withdraw his plea of not guilty, and to interpose a demurrer to the indictment. This the court granted on the condition that the prisoner would pay the costs. This the prisoner failed to do, but tendered his demurrer which was refused by the court, and the case *405was tried before the jury on the plea of not guilty, and the prisoner was found guilty. A motion in arrest of judgment was made and overruled, and the prisoner sentenced to confinement in the penitentiary house, for the period of five years and seven months.
Although, strictly speaking, the refusal of the circuit court to allow of the withdrawal of the plea of not guilty, and to permit the prisoner to demur to the indictment, is the only inquiry presented to us under this record, yet, inasmuch as the sufficiency of the indictment has been fully discussed before us, and as the party will have to be tried over again, we deem it proper for us to express our opinion in regard to it.
We have no doubt that the indictment was defective in not averring that the house was burned. At common law', neither an intention nor an actual attempt to burn a house will amount to a felony, if no part be burned. 1 Hawk., ch. 39, sec. 4. 5 East P. C., 1020. See also, the case of Howel vs. Commonwealth, 5 Grattan, for a discussion of the difference in meaning between the words, “set fire to,” and, “burn.” And in the 4th Book of Black stone’s Com., 222, it is said, “as to what shall be burning, so as to amount to arson, abare intent, or attempt to do it by actually setting fire to a house, unless it absolutely burns, does not fall within the description of incendit et combussit; which w'ere words necessary in the days of law-latin to all indictments of this sort.”
Our statute of 1809, ch. 138, only provides for the punishment of the crime of arson without defining it. It is, therefore, left as it stood at common law'. Prior to the act of 1852, ch. 63, such an omission as in this case could have been availed of by a motion in arrest of judgment, as well as by a demurrer to the indictment. Since the passage of that act however, we are of opinion, that “no judgment upon any indictment for any felony or misdemeanor,” shall be stayed or reversed, “for any matter or cause which might have been a subject of demurrer to the indictment.”
In the case now before us the defect in the indictment *406could have been availed of by demurrer, and, therefore, could not be by a motion in arrest of judgment. But it appears, the learned judge below was of opinion that inasmuch as the prisoner had pleaded not guilty, he was not entitled to with-' draw his plea and to demur as matter of right, but only as r favor to be granted by the court, and on such terms as i< thought proper.
It must be confessed that there is no little indistinctness in some of the reported cases, whether the right to withdraw the plea of not guilty and to demur, belongs, unconditionally, to the prisoner, or, is matter of favor to be granted by court. We think, however, that the better opinion is — as is clearly the justice of the matter — that the prisoner has the right. Before the act of 1852, ch. 63, the defect could have been availed of by motion in arrest of judgment. Then the whole trial could be gone through with, and if the party were convicted the judgment could be set aside. To avoid such waste of time, was, we may presume, one of the reasons which induced the passage of the act of 1852. It requires that the demurrer shall be resorted to instead, as theretofore, of a motion in arrest of judgment. By allowing the interposition of the demurrer, the time of the court is saved, and if on it, the indictment be quashed, the prisoner could be re-indicted. We think the prisoner has the right to withdraw his plea of not guilty and put in his demurrer; and this was the decision in the case of Hume vs. Ogle, 1 Croke Elizabeth, 196.
Although the judgment be reversed, the party can be arrested and tried again on this indictment. If he chooses not to demur and prefers to go to trial on the plea of not guilty, and he be found guilty, a judgment may be pronounced by the court, notwithstanding the indictment be defective; But, if he demur and the court sustain the demurrer, a*”! quash the indictment, he can be indicted again. We make these observations to show, that although the effect of the reversal of the judgment, is to discharge the prisoner from his confinement in the penitentiary, that he may be immediately on his discharge, arrested and held to answer on this *407indictment, for non constat, he will demur, he may elect to go to trial on the plea of not guilty.
The trial which has already been had, is what is known to the law as a mistrial, and does not relieve the party from further liability. State vs. Sutton, 4 Gill, 494.
In conclusion, we remark, that we do not consider ourselves at liberty to decide the other questions argued by counsel, and assigned as reasons in the court below' in support of he motion in arrest of judgment. This record does not wing them before us.
Judgment reversed and procedendo awarded.