#### Harold Duke v. State.

182 So. 277.

Opinion Filed June 17, 1938.

Rehearing Denied July 8, 1938.

*W. D. Bell,*for Plaintiff in Error;

*Cary D. Landis,*Attorney General, and *Tyrus Nor-wood,*Assistant Attorney General, for the State.

Per Curiam.

In this cause Mr. Chief Justice Ellis, Mr. Justice Buford and Mr. Justice Chapman are of the opinion that the judgment of the Circuit Court herein should *866be affirmed while Mr. Justice Whitfield, Mr. «Justice Terrell and Mr. Justice Brown, are of the opinion that the said judgment should be reversed for a new trial. When the members of the Supreme Court, sitting six members in a body and after full consultation, it appears that the members of the Court are permanently and equally divided in opinion as to whether the judgment should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the Court, the judgment should be affirmed, therefore it is considered, ordered and adjudged under the authority of State, *ex rel.*Hampton, v. McClung, 47 Fla. 224, 37 So. R. 51, that the judgment of the Circuit Court in this cause be and the same is hereby affirmed.

Affirmed.

Ellis, C. J., and Whitfield, Terrell, Brown, Buford and Chapman, J. J., concur.

Per Curiam.

The information herein contained three counts charging that the defendant (1) “did unlawfully, willfully and maliciously set fire to and burn a certain dwelling house * * * the property of Paul Duke”; (2) “did unlawfully, maliciously and willfully set fire to and burn that certain dwelling house * * * the property of Cleo Duke”; (3) “did unlawfully, willfully and maliciously set fire to and burn that certain dwelling house * * * the property of Harold Duke.” There is no allegation in any count as to the occupancy of the dwelling house alleged to have been burned.

A *motion*was made *to*quash the information upon grounds going to the validity of the statute defining the offense, as well as to the sufficiency of the information as a pleading.

Chapter 15603, Acts of 1931, is as follows :

“An Act to Define and Punish the Offense of Unlawfully Burning, Setting Fire to, or Attempting to Burn or Set *867Fire to, Property; or Aiding, Assisting, Counselling, Procuring or Advising in the Burning of or Setting Fire to, Property in This State, Whether the Same Would be Arson at Common Law or Otherwise; to Denominate as ‘Arson’ the Crime Hereby Denounced, and to Divide the Same Into Degrees, and to Provide the Punishment for Each Degree.

“Be It Enacted by the Legislature of the State of Florida:

“Section 1. Arson.—First Degree. Any person who willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied, or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another, shall be guilty of Arson, in the First Degree, and upon conviction thereof, be punished by imprisonment in the State prison for not more than twenty years.

“Section 2. Arson.—Second Degree. Burning Buildings, Etc., Other Than Dwellings.—Any person who willfully and maliciously sets fire to or burns or causes to be burned, or who aids, counsels or procures the burning of any building or structure of whatsoever class or character, whether the property of himself or of another, not included or described in the preceding section, shall be guilty of Arson in the Second Degree, and upon conviction thereof, be punished by imprisonment in the State prison for not more than ten years.

“Section 3. Arson.—Third Degree.—Burning of Other Property.—Any person who willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any personal property of another of whatsoever class or character of the value of Twenty-five or more Dollars, shall be guilty of Arson *868in the Third Degree, and upon conviction thereof, shall be punished by imprisonment in the State prison for not more than three years.

“Section 4. Arson.—Fourth Degree. Attempt to Burn Buildings or Property.—Any person who willfully and maliciously attempts to set fire to or attempts to burn or to aid, counsel or procure the burning of any of the buildings or property mentioned in the foregoing sections, or who commits any act preliminary thereto, or in furtherance thereof, shall be guilty of Arson in the Fourth Degree and upon conviction thereof be punished by imprisonment in the State prison for not more than two years or fined not to exceed One Thousand Dollars.

“Section 5. All laws or parts of laws in conflict with this Act are hereby repealed.

■ “Section 6. This Act shall take effect July 1, 1931.

. “Approved June 25, 1931.”

See Secs. 7208 (8), (9), (10), (11), Perm. Supp. 1936 to C. G. L. •'

This Act was held valid in Love v. State, 107 Fla. 376, 144 So. 842. The prior statute relating to arson was held to be invalid because it violated Section 16, Article III, of the State Constitution in that it contained regulations of two distinct and incongruous subjects. See Chapter 11812, Acts of 1927; Williams v. State, 100 Fla. 1054, 132 So. 186; Sawyer v. State, 100 Fla. 1603, 132 So. 188.

It is in effect argued here that Chapter 15603 violates Section 16, Article III, of the Constitution in that the title of the Act expresses the subj ect of the Act to be “to denominate as ‘arson’ the crime hereby denounced, and to divide the same into degrees, and to provide the punishment for each degree,” when “the statute does not denominate any particular crime as arson but each section deals with a *869different kind of burning, and instead of denouncing anyone crime as arson, it has set forth four crimes and denounced each as arson”; that the crimes included in the statute are not degrees of any one offense, but four separate and distinct statutory crimes; that “the statute purports to denounce a single crime and proceeds to denounce four separate and distinct crimes.” Such contentions are untenable.

It is within the power and judgment of the Legislature by statute to define arson and to make it applicable to dwelling houses or other property, or to define different degrees of arson with reference to different kinds- of property; and it is not necessary for any of such definitions to conform to common law definitions of arson or to definitions of arson contained in standard authorities on definitions, where the statute definitely and sufficiently gives the elements of the crime defined, and no provision of organic law is thereby violated. The statute is quoted above and its title does not express more than one subject of legislative regulation; and the subject expressed in the title is not misleading as to the matter contained in the body of the statute.

The subject of the enactment is the definition and punishment of crimes denominated arson, whether the same would be arson *ja.t*common law or otherwise; all are kindred offenses and all are denominated arson, each a stated degree of arson with appropriate punishment for' each degree, all definitely defined.

All the provisions contained in the body of the Act directly relate to the subject expressed in the title or to matters properly connected therewith. Section 16, Article III, of the Constitution is not violated by the enactment of Chapter 15603, Acts of 1931.

It is urged that the statute “endeavors to not only change *870the defintions of common law arson, but * * ***it changes the definition of a dwelling house without giving any notice of such change in its title.” Under the title of the Act, the property made the subject of arson by the Act may be defined by the statute even if it does include dwelling houses, whether occupied, unoccupied or vacant, and also other property.

The Constitution requires the title of an Act to express the subject of the Act, nor the mode or manner in which the subject is treated or regulated by the Act, and unless the title is misleading as to, or is too restricted to cover, the subject of the Act or matters contained in the Act, the Constitution may not be violated.

While at common law the usual definition of the crime of arson is “the willful and malicious burning of a dwelling house, or outhouse within the curtilage of a dwelling house of another,” yet the Legislature by statute may change the definition of arson so that the crime may be extended to the burning of other houses, or property other than dwelling houses or other houses within the curtilage, whether the houses be unoccupied or not as an element of the statutory offense. See Williams v. State, 100 Fla 1054, 132 So. 186; 6 Corpus Juris Secundum 718, 733; 4 American Jurisprudence 87, 103.

The words “dwelling house” may mean “,a place of habitation and abode”; and in a prosecution under the common law definition of the crime of arson, it may be proper or necessary to allege that the dwelling house was occupied by a designated person. But as the statute has defined arson to be in stated cases whether the “dwelling house” unlawfully burned be “occupied, unoccupied or vacant,” it is not essential that the information alleged the name of the occupant of the dwelling house in this case. Under the statute the crime relates to a dwelling house, without reference *871to its occupancy, the offense and the punishment being the same whether the dwelling house is occupied, unoccupied or vacant; but the punishment is greater than that for a criminal burning of other buildings or property than a dwelling house. See degrees of arson as defined in the statute, *supra.*

In defining four degrees of arson, the statute is not controlled by common law definitions of words or of elements of the crime of arson. Chapter 15603 does not expressly amend the previous statutes on the subject of arson, but expressly repeals all laws or parts of laws in conflict with the enactment. Section 1 of Chapter 15603 embraces *“any*dwelling house; *whether occupied, unoccupied, or vacant,*or any kitchen, shop, barn, stable or.other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another,” and Section 2 embraces “any building or structure of whatever class or character, whether the property of himself or of another, not included or described in the preceding section”; but this does not require an allegation or proof as to the occupancy of a dwelling house in prosecutions for arson in the first degree, under Section 1, Chapter 15603.

Unlike Section 1, Chapter 11812, Acts of 1927 (Section 7208 U. G. L.), and unlike Section 5106 (3273) R. G. S. (Section 1, Sub-chapter 4 of Chapter 1637, Acts of 1868) Section 1, Chapter 15603, Acts of 1931, above quoted in full, defining the crime of arson in the first degree, embraces any dwelling house, “occupied, unoccupied or vacant.” This enlarged the common law concept of a dwelling house in prosecutions for arson; and it also enlarges the statutory definitions of arson contained in previous statutes of this State. This makes it unnecessary to allege the name of the occupant of a dwelling house in informations and indictments charging arson in the first degree under Section 1, Chapter 15603, Acts of 1931.

*872Due to the terms of Chapter 15603, Acts of 1931, the decisions to the contrary in Sawyer v. State, 100 Fla. 1603, 132 So. 188, and in previous cases, are inapplicable as precedents on the point of alleging occupancy of a dwelling house in arson prosecutions.

A witness for the State who testified that the defendant called him at night to help control the fire, was asked,

“Q. What did you see when you got down there?

“A. Just saw; both houses afire.

“Q. What both houses?

“A. No. 1 and No. 6.

“Q. You mean the house known as the Paul Duke house and house Harold Duke lived in, both?”

“Judge Bell: Would like for your honor to rule on my motion. I am going to state at this time the defendant is taken by surprise by the change of the State’s theory of this case, because it was distinctly stated here at the outset of the case when we were arguing with reference to a choice or an election between the different counts of the information, State’s Attorney distinctly said that it was the same house in each count, but he was merely alleging the ownership in different ways. Now he is placing before this jury testimony with reference to two houses, and we ask, as a matter of fairness, so that the jury may know what they are trying him for, which house he is trying him for.

“A. Yes, sir. * * *

“Now comes the defendant and moves the Court to require the State at this time to make plain as to which house he is prosecuted—which of the dwelling houses named in the information.

“Mr. Stubbs (the State Attorney) : Both of them.

“The Court: I will have to leave it to the jury.

“To which ruling and decision of the Court the defendant by counsel did then and there except.”

*873The first count of the information charges the unlawful burning of *“a*dwelling house located on Section thirty (30) Township forty-three (43) south of Range twenty-three (23) east,” Lee County, Florida, “the property of Paul Duke.” The evidence showed the burning of two houses, the property of Paul Duke, on the described land at the same time. The defendant by counsel in effect asked that the house charged to have been burned be identified in the testimony. The State Attorney replied as above stated. The Court left it to the jury. The jury found the defendant guilty under the first count which did not identify by description, number or otherwise the house alleged to have been burned by the defendant, and did not refer to either of the two houses shown to have been burned. The result is the defendant is convicted of burning an unidentified house upon proof of the burning of two houses. He was charged with burning a dwelling house and convicted of burning a dwelling house, the property of Paul Duke, when the testimony showed the burning of two dwelling houses without identifying the dwelling house referred to in the information. This does not protect the defendant from another prosecution for the unlawful burning of either dwelling house shown to have been burned, both of which were located in the described premises belonging to Paul Duke. This was harmful error.

Whitfield, Terrell and Brown, J. J., concur.

Ellis, C. J., and Buford and Chapman, J. J., dissent.