#### THE PEOPLE OF THE STATE OF NEW YORK, Plaintiffs in Error, *v.*FRED. W. PIERCE, Defendant in Error.

*Arson in tJwrd*degree— *chap.*197 *of*1862 — *what must be alleged in indictment for.*

In an indictment for arson in the third degree, under section 10 of chapter 197 of 1862 — providing that “ every person who shall willfully set Are to, or burn in the night-time, any store or warehouse not adjoining to or within the curtilage of any inhabited dwelling-house, so that such house shall not be endangered by such firing, shall, upon conviction, be adjudged guilty of arson in the third degree” — it is not necessary to negative the exception therein contained, and allege that the store or warehouse burned was not within the curtilage of an inhabited dwelling-house as specified in the statute.

Writ of error on bebalf of tbe people to tbe Court of Sessions of tbe county of Essex, to review a decision of tbe court quashing an indictment and rendering a judgment in favor of tbe defendant in error.

Tbe defendant was indicted for arson. Tbe indictment containing three counts, each charging tbe plaintiff with willfully and feloniously setting fire to, and burning in tbe night-time, two stores situated in tbe town of Westport. Tbe defendant’s counsel demurred to and moved to quash tbe indictment, on tbe ground that it was not alleged whether tbe stores were or were not adjoining to, or within tbe curtilage of, any inhabited dwelling-house, so that such bouse would be endangered by such firing.

Tbe court granted tbe motion, and tbe case was brought to tbe General Term by Tbe People, pursuant to chapter 82 of tbe Laws of 1852.

*Robert 8.*Hale, for tbe plaintiffs in error.

Waldo, *Tobey <& Grover,*for tbe defendant in error.

Learned, P. J.:

It is true that, in many cases, where an indictment is found for a statutory offense, it must negative any exceptions made in tbe statute. Tbe reason of this is evident. Tbe absence of those facts which are excepted by tbe statute, goes to make of tbe act done a criminal *634offense. For instance, if one were indicted for selling liquor without having a license, it is the fact that he has no license which makes an offense of the act of sale.

But, in the present case, the words of exception in the statute, “not adjoining to or within -the curtilage,” etc., do not go to con stitute the act of burning a criminal offense. They are intended only to except from the statute a class of acts which were already, by another statute, an offense of a higher degree. That statute had made it a crime to burn in the night-time any store or warehouse, even though it were not adjoining to or within the curtilage, etc. By the two statutes any setting fire in the night-time to a store or warehouse is a crime. If the store or warehouse be adjoining to or within the curtilage, etc., the crime is of a greater, if not, then of a less degree.

We think, therefore, that the judgment should be reversed and the people should have judgment on the demurrer and motion to quash, with leave to the defendant to plead to the indictment, and the case should be remitted to the Court of Sessions.

Present — Learned, P. J., Bookes and Boardman, JJ.

Order quashing indictment and judgment on demurrer reversed defendant in error to be allowed to plead to indictment; case remitted to Court of Sessions.