More mature consideration upon motion for rehearing has led us to believe we were in error in our former affirmance of the judgment.
The law relative to arson is found in Chapter 1, Title 17, P.C. After defining "arson" as the "wilful burning of any house, etc." (Article 1200 P.C.) the next article defines a house; then in order that it might be plain what character and extent of burning would make the offense of arson complete Article 1202 provides that the "burning is complete when the fire has actually communicated to a house, though it may be neither destroyed nor seriously injured." Articles 1203 and 1204 deal with the design and intent of the party accused; then appears Article 1205 which is invoked in aid of the present prosecution; it reads: "The explosion of a house by means of gunpowder, or other explosive matter, comes within the meaning of arson." The effect of this article was to create a new offense, call it arson and punish it as such which otherwise would not have been arson under the law, unless fire was communicated to the house by means of the explosion. This court recognized such to be the case in Landers v. State, 39 Tex.Crim. Rep., 47 S.W. Rep., 1008, which held that unless fire was communicated to the house by the explosion the prosecution should not have been under the arson statute (Art. 1200 P.C.) but under the explosion statute (Art. 1205 P.C.). When we go to the next chapter (2 of Title 17) the first article therein (1213) reads: "The rules and definitions contained in the preceding chapter with respect to arson apply also to wilful burnings under the provisions of this chapter where they are not clearly inapplicable." The next article (1214) denounces the wilful burning of a building, which is not a house, stack of corn, hay, fodder, grain, flour, boards, fences, etc. Nowhere in chapter 2 does it denounce as a crime the explosion of such property. Our original opinion was based on the proposition that Article 1213 (supra) making the rules and definitions as to arson apply to other wilful burnings, brought into chapter 2 the provisions of article 1205 relative to the explosion of a house, and made the explosion of any property included in the provisions of chapter 2 a wilful burning whether fire was communicated to the property or not. We have concluded this proposition is not sound. The "rules and definitions" referred to in Article 1213 as applicable to other wilful burnings relate to the communication of fire to the property as making the other "wilful burning" complete, whether the property be destroyed or not, and as to the design and intent of the accused, etc. If the explosion of a stack of hay, or of any other property described in said chapter 2 communicated fire to it the offense of "wilful burning" would be complete *Page 223 whether it was totally destroyed or only slightly injured, by reason of the rules and definitions as to arson being applicable. But to hold that the explosion of such property which does not communicate fire to it is a "wilful burning" seems carrying the doctrine of intendment dangerously far. Again reverting to Article 1205; the crime there denounced is not truly arson, but the explosion of a house is made an offense whether is burn or not; the statute says it comes within the meaning of arson when applied to a house and makes it punishable as such. If article 1205 did not create a new offense then one who explodes a house could be charged simply with arson under Article 1200, and upon proof of the explosion be convicted of arson whether or not fire was communicated to the house as a result of the explosion. But as we understand the opinion in Landers v. State, (supra) this is exactly what may not be done. If the explosion sets fire to the house surely the prosecution could proceed under the arson statute (Art. 1200), but if the explosion does not so communicate fire to the house the prosecution must be based on and proceed under Article 1205. In the arson and explosion statutes some similarity may be found to our statutes defining burglary (Art. 1303 P.C.) and burglary of a private residence, (Art. 1305 P.C.) which latter are held to be distinct offenses, necessitating different allegations to charge the offenses. Osborne v. State, 42 Texas Crim. App., 557, 61 S.W. Rep., 491; Malley v. State,58 Tex. Crim. 425, 126 S.W. Rep., 598. The Legislature could have denounced as a crime the explosion of any property included in chapter 2 of title 17 and called it a "wilful burning" even though in fact the property was not burned, nor even scorched by the explosion, just as the explosion of a house was made a crime and called arson. It is not the name given to the crime defined that controls so much as the elements of the crime itself. The law making body may still make such law and may include dipping vats among hay, fodder, corn, etc., by amending Article 1214, or it may make the explosion of a dipping vat a felony independent of any present statute. We have concluded that the provisions of Article 1205 denouncing the explosion of a house as an offense cannot by the terms of Article 1213 be regarded as such "rule" or "definition" as may be brought forward as applicable in aid of the other provisions of Chapter 2, of Title 17, but that said Article 1205, however it be classed or named, does in fact create a distinct offense applicable to houses only, and is therefore not available in the present prosecution.
My brother Morrow is of opinion that a dipping vat constructed as was the one described in the present case is not a "building" under Article 1214. He may express his views relative to that matter. The present writer has refrained from discussing it deeming it unnecessary in disposing of the case. If Article 1205 cannot be brought forward in aid of Article 1214 it is immaterial whether or not the dipping vat was a "building." *Page 224
We believe one who destroys a dipping vat is not punishable under Article 1214, but may be proceeded against under Article 1235 of the P.C. which reads thus:
"If any person shall wilfully and mischievously injure or destroy any growing fruit, corn, grain, or other like agricultural products, or if any person shall wilfully or mischievously injure or destroy any real or personal property of any description whatever, in such manner as that the injury does not come within the description of any of the offenses against property otherwise provided for by this Code, he shall be punished by fine not exceeding one thousand dollars: provided, that when the value of the property injured is fifty dollars or less, then in that event, he shall be punished by fine not exceeding two hundred dollars."
The motion for rehearing is granted, the affirmance set aside, the judgment of the trial court reversed, and the cause remanded.
Reversed and remanded.