#### Johnson *v.*The State.

*Arson.*

(Decided April 21, 1911.

55 South. 268.)

1. *Arson.*— At common law and under the statute, arson is an offense against possession rather than the property.

2. *Same; Indictment; Averment of Ownership.*— An indictment for the statutory offense of arson must aver the ownership of the property burned, but the ownership that should be averred and proven relates to the actual occupancy for use and not to the nature of the estate or claim of the occupant.

3. *Same; Varia,nee.*— Where the indictment charged that the bam burned was the property of 0., and the evidence disclosed that the possession was in another, who as tenant, held it to occupancy and use, there was a variance between the allegation and the proof.

Appeal from Shelby Circuit Court.

Heard before Hon. John Pelham.

Bob Johnson was convicted of Arson and he appeals.

Reversed and remanded.

Riddle, Ellis, Riddle & Prtjet, for appellant.

The defendants were entitled to the affirmative charge on account of a variance between the allegation and proof as to *ownership.*— Adams *v. The*State, 62 Ala. 177; 85 Ala. 114; *Thomas v. The*State, 97 Ala. 3; *Fornler v. The State,*100 Ala. 96; *Hill v. The State,*104 Ala. 64. Counsel discuss other assignments of error, not necessary to bo here set out.

*149Alexander M. Garber, Attorney General, for the State.

Under the indictment in this case ownership was properly laid in the holder of the legal title. — ■ *Q-ranison v. The*State, 117 Ala. 22. Counsel discuss other assignments of error, but without citation of authority.

WALKER, P. J.

The indictment in this case charged that the defendant “willfully set fire to or burned a barn of Josh Crim, whose name is to the grand jury otherwise unknown, in which there was at the time no human being.” The charge is of arson in the second degree, as defined by section 6296 of the Code. The evidence on the trial showed that the barn was on land the title to which was in said C!rim, but that he did not live on that tract of land, and that at the time of the burning he was living on a different tract of land, about a mile and a half distant from the barn; that at the time of the burning the tract of land upon which the barn was located was occupied by Cass Harrison and Tom Williams, Avho rented that land by the year — the witness Crim stating that “the bam that Avas burned belonged to the house Avhere Cass Harrison stayed.” At the conclusion of the evidence introduced by the state, the defendant’s counsel moved the court to exclude such OAddence, on the ground, among others, that there was a variance between the proof and the allegations of the indictment, and duly excepted to the action of the court in overruling this motion. Exceptions also were reserved to the refusal of the court to give two written charges, marked, respectively, “A” and “B,” requested by the defendant on the submission of the evidence to the jury.

.Under our statutes, as was the case at the common law, arson is an offense against the possession, rather than the property.

*150An indictment for the statutory offense must aver the ownership of the house or other property which, was burned or set fire to; but the ownership to be proved relates to the actual occupancy, the dominion in fact over the thing, not to the nature of the estate or claim of the occupant. It is the possession, not the tenure or interest in the property, which should be described. This being true, an indictment which, following the Code form, charges that A. B. willfully set fire to or burned a barn of C. D., imports, not necessarily that the fee was in C. D., but that the barn was his to occupy, that the possession was his, without regard to the questions as to how he acquired the possession or whether he holds under another, so long as the property is his to possess and *enjoy.*—Peinhardt *v. State,*161 Ala. 70, 49 South. 831; *Adams v. State,*62 Ala. 177; *Davis v. State,*52 Ala. 357; *May v. State,*85 Ala. 14, 5 South. 14.

In this case the barn alleged to have been set fire to or burned is laid in the indictment as the property of Josh Crim, while the evidence shows that the possession was in another, who, as a tenant, held it to occupy and use. The allegation and the proof did not correspond. The trial court erred in holding otherwise.

Reversed and remanded.

Pelham, J., not sitting.