Arson at the common law, as well as under the statute of this state defining arson in the first degree as it existed prior to- the enactment of section 6301 of the Code of 1907, was an offense against the possession rather than the property. — State v. Young, 139 Ala. 136, 36 South. 19, 101 Am. St. Rep. 21. As Mr. Bishop states it, arson is an offense against the security of the habitation and is defined as the malicious burning of another’s house, so that by “another’s house,” in the definition, is meant another’s to occupy. Bishop’s Cr. Law, § 12.
The indictment followed with substantial compliance the form prescribed by the Code for indictments under section 6295, Code 1907, § 7161, form 8. The introduction of the allegation, not required by the form, that the dwelling house adjoining the storehouse burned was the dwelling house of A1 Richter, while imposing on the state an additional burden of proof, did not operate to impair the validity of the indictment, nor suffice to bring the offense charged within the category of the crime denounced by section 6301. The provision of section *736295, which makes arson in the first degree of the willful burning of any house adjoining an inhabited dwelling house, discloses no purpose to change the common-law principle referred to above. That principle pervades the provision in question, as well as the rest of the statute; the effect of the provision being to raise the grade of the offense of burning a house other than a dwelling house to arson in the first degree by reason of the circumstance that it adjoins the inhabited dwelling house of another. Section 6301, however, makes arson of that which was not arson before and thus creates a new offense.
As a result of the coanmon-law principle adverted to in the beginning, and of the further principle that one cannot commit an offense under a statute except in the circumstances it specifies, it is stated that an indictment for arson, when framed under a statute for burning one’s own house, meaning a house occupied by the defendant, must show that it was the defendant’s house, in conjunction with the statutory circumstances. — 2 Bishop’s Gr. Proc. § 36. It appeared at the trial without dispute that the defendant was at the time of the burning occupying the storehouse burned as a tenant of the owner. It results that there was a variance, and that special charges 1 and 3, and the general charge, requested by the defendant, should have been given.
For the error pointed out, the judgment of the trial court is reversed, and the cause is remanded, with directions that the appellant be held to answer any new indictment which may be preferred against him.
Reversed and remanded.
Dowdell, C. J., and Anderson and McClellan, JJ., concur.