#### STATE vs. SANDY, (A SLAVE.)

June 1843

A building, in which goods are kept for sale by a retail merchant, is a “ store* house,” within the meaning of the act of Assembly, *Rev.*St. ch. 34. s. 1.

A room in a large building, which room was separately leased by tho owner of the building to a merchant who occupied it as a store, and having no direct communication with the other parts of the building, is properly laid in an indictment for arson as the property of the lessee.

To constitute arson, the least burning of the house is sufficient. The charring of the floor to the depth of half an- inch is certainly sufficient.

Where there is but *one*statute, an indictment which concludes against the form of *the statutes,*is bad, and, after convictiou, judgment will be arrested. Where there are more than one statute, a conclusion against the form of *the statute*is also bad.

The cases of the *State*v *Jim,*3 Murph. 3. *Scroter*v *Harrington,*1 Hawks 193. *State*v *Muse,4¡*Dev. & Bat. 319, cited and approved.

Appeal from the Superior Court of Law of New Hanover County, at Spring Term, 1843, his Honor Judge Settle presiding. »

This was an indictment against the prisoner for burning the store-house of Hugh M. Cowan, and concluded “ against the form of the statutes, <fcc.” The prisoner on his arraignment pleaded Not Guilty. On the trial, *Hugh M. Cowan,*the first witness on the part of the State, testified, that he was a retailer of groceries and dry goods in the town of Wilmington, and rented from Hector McKellar a tenement in a large building, the upper part of the building beingoccupied by the said Hector McKellar — that the tenement occupied by the witness had been, for several years, commonly occupied as a store, and an adjoining tenement, occupid by one Alfred Dudley at the time of the transaction which gave rise to this indictment, had been commonly, and was at the time spoken *571of, also used as a store — that the whole of the building, ing under one roof, was owned by one Edward P. Hall, who leased to Alfred^Dudley one tenemeraent, ándito Hectar Me-Kellar the rest of the building — that the term of the witness in his lease began in October 1842, and would expire in October, 1843 — that the tenement occupied by the witness had no internal communication with any other part of the building, and there was no ingress to or egress from it, except by the street or a back yard — that the witness had no other depository either for his dry goods or groceries, among the latter of which were hogsheads of molasses and other heavy articles, besides the said tenement — that the said tenement consisted of two rooms, although the door-way between them had no shutter, but always remained open — that the witness was acting in his business entirely on his own account and without any partner — that on the evening of the 21st of January, 1843, he shut up his store about half past nine o’clock, and retired to his lodgings in another house' — -that about three o’clock on the following morning, being Sunday morning, he was aroused from his slumbers by one of the town watch, who informed him that his store had been broken open, robbed and set on fire — that he immediately went to his store and found that the door had been forced open— that the floor was on fire, or at least that the goods lying on it were so, although the .fire had apparently been deadened by throwing water on it — that he proceeded to extinguish the fire entirely, and found that the floor was charred in three places, in one to the depth of half an inch, in another to the depth of a quarter of an inch, and in another it was only superficially charred — that the counter was also charred— that a barrel of flour was nearly consumed — that some of his goods were burned, others missing, and what remained very much injured, so that his property - in the store, in one way or another, was nearly destroyed— that, the next day, goods, which he identified os his, were brought to him- — . •that, having’ reason to believe that the prisoner, who was then in custody, though not upon any warrant,’’was the perpetrator or one of the perpetrators of the act, he asked “what *572had become oí the rest of his sugars ?” to which the prisoner replied, “ that the boat was so heavily loaded that he had thrown it overboard” — that he then asked the prisoner, how he got into the store, to which the prisoner replied that he forced the door with crow bars — .that he then asked the prisoner, who put the fire to the store, to which the prisoner replied that he did, but he did not do it alone, and then mentioned another negro who assisted him — that he was then asked how he got a light, to which he replied, that there were some matches which he lighted, and, having lighted a candle, took two boxes of matches, and, after having lighted them, put them on the floor and piled the goods upon them— that all this the prisoner answered, without any violence, threats or persuasions having been used to him by any one; and without any appeal whatever having been made to his hopes or his fears.

*Skipper,*one of the town guard, testified, that about two o’clock on Sunday morning, the *22d*of January, he discovered a light in the store of Hugh M. Cowan, and, on pushing the door with his stick, found it was not fastened — that on entering, he found the house full of smoke and a pile of goods in a light blace on the floor — that one of his fellow-guards, who was with him, brought some water and threw it upon the fllames, which being thrice repeated the fire was deadened — that he then sent for Mr. Cowan, who soon came. The witness then described the effects of the fire in the same manner as the preceding witness. Several other witnesses were examined, to prove that the 'prisoner was the perpetrator of the act, but their testimony has no relation to the questions of law arising in the case.

The prisoner was defended on the ground that the proof was insufficient to convict him, but that, supposing all the alleged facts true, *first,*there was a variance between the allegation and the proof as to the property in the store-house-*Secondly,*that the tenement set on fire was not such a one as was meant by the term “store house” m the act of Assembly; *Thirdly,*that the tenement was not so burned, as to constitute the offence from which clergy is taken by th.e *573act of Assembly. His Honor, leaving it to the jury to ascertain the facts, informed them that such a building as was de-scribed by Hugh M. Cowan, was a store house within the *j*23 ; meaning of the act of Assembly — that, if they believed the testimony of Mr. Cowan, it wasproperly described in the indictment as the store-house of Hugh M. Cowan — and the burning described by the witnesses, if done wilfully and maliciously, was such a burning as rendered the perpetrator an offender against the act of Assembly.

The jury found the prisoner guilty, and a motion for a new trial and also in arrest of judgment having been overruled, and judgment pronounced against the prisoner, he appealed to the Supreme Court.

*Attorney General*for the State.

No counsel in this court for the prisoner,

Ruffin, C. J.

The act of 1836, Rev. St. ch. 34, s. 1, introduced for the first time, the term “store-house,” into the statute book, and accompanies it with two explanatory words to shew precisely to what particular building the Legislature meant to apply it. Having, previously, no legal signification, as a term of art, it must, of course, be understood in its general sense, given to it as a word in our language in approved dictionaries. In that way we find it to be defined, “ a building for keeping grain or goods of any kind, a repository, a ware-house which signification clearly covers the plac.e in this case, and, indeed, much more, and even more, perhaps, than was actually in the mind of the writer of the act. For we believe, the word is vulgarly used in different senses, and perhaps, not exactly alike in different parts oí the country. A common use of it is, to designate a building, in which domestic supplies are kept at a place of residence. — t It is also applied to places of business, and is there vulgarly used ,ss synonymous with “ shop” in one of iis proper *574senses, meaning a building in which goods are offered openly for sale. It is probable the Legislature had in view a building of the latter character, since one of the former kind would probably in most cases be protected as “ part of the dwelling house,” mentioned in the previous part'of the sentence. If such was the intention, it is to be regretted that the term “shop” had not been adopted, as having an established legal meaning. But as another term was chosen, it is the duty of the court to execute the act accordingly, and it cannot be doubted that “ store-house,” both in its proper senseand according to a common acceptation of .it, embraces the building here burnt.

The determination of the preceding point goes far in deciding also that the ownership was properly laid to be in Cowan. It was certainly not a part of McKeller’s house, in legal contemplation. There was no communication between this and the other parts of the building, and they were severed by being employed for different purposes, and occupied by different persons, as their own for the time. The several portions thereby became distinct properties and houses, for the purposes of constituting the crimes of burglary or arson, as much so as if they had not been under the same roof. 1 Hawk. c. 38, s. 34. East. P. C. 504.

The next objection is nothing at all, being no more than a question, whether burning is burning. It is stated in the case, that the floor of the building was charred to the depth of half an inch. The definition of “char,” is to reduce wood to a coal by burning. Therefore the crime was complete here, for although to constitute arson there must be a burning of the house, and not merely something that is in it, yet the least burning of the building is sufficient. The opinion of the court therefore is, that the conviction was right.

But the court is likewise of opinion, that there cannot be judgment on this indictment, because it concludes “ against the form of the statutes,” while the offence depends on but a .single statute. We think it settled, that when the offence depends on more than one statute, the conclusion *contra**575*formam statuti,*is bad, and in like manner, that a sion *contra formam slatuiorum*is bad, when there is but one statute. The iormer proposition is not susceptible oí dispute, but all seem agreed in it. *Broughton*v *Moore,*Cro. Jac. 144. 2 Hale 173. *State*v *Jim,*3 Murph. 3.— The reason is, that the party has a right to know the law against which, it is alleged, he has offended. Hence if the indictment be given by a statute, it must conclude against the statute, otherwise it is at common *law;*and if the party be not punishable by that law, there can be no judgment against him. So, with reference to offences depending on more than one statute, the indictment must be” varied in the conclusion, to suit the truth. For, anciently, the pleadings recited the statute or statutes, and, of course, the necessity which caused the recital of the one,- when there was but one, would likewise require the recital of all, when there were more than one. Afterwards-, the general conclusion, *contra formam*&c., was received instead of the recital— But it is manifest, that the reference to the statute or statutes in the general conclusion ought to correspond to the recital or recitals, for which it was substituted. Hence, as has been already stated, it is clear law, that a conclusion, *contra*for-*mam statuti,*is bad, when there are two or more statutes, and the conclusion ought to be, *contra form,am slatutorum.*It thus appears, that the conclusion against the statute or statutes is of the substance of an indictment or declaration, as has beeen indeed recognised in the other cases in this State, besides that before cited. *Scroter*v *Harrington,*1 Hawk 192. *State*v *Muse,*4 Dev. & Bat. 319. And it further appears, that those two forms of conclusion are substantially different, since the use of the word in the singular will not do, when it should be in the plural. Now, it would seem to follow necessarily, that *vice versa, statorum*will aot do, when it should be *stahiti.*For if, by the conclusion in the singular, it is to be understood, that the accused is charged'but on one statute, so, when the conclusion is in the plural, it is affirmed that he is charged on more than *576one, and they should be shewn accordingly. But it was said, that as this conclusion may be rejected, when there is no statute, and the offence is at common law, so by parity of reason may a conclusion in the plural be rejected as sur-plusage, when it' should be in the singular. This position is entitled to the more respect from being sanctioned by Judge Story in *Kenrick*v *United States.*1 Gallis. Rep. 263. The answer to it is the dissimilarity of the cases. If, indeed, the statutes were recited at large,■ and one of them fully gave the action and the other had nothing to do with the subject, the latter might perhaps be disregarded, because there would be enough still on the reeord to authorize judgment, and *utile per inutile non vitiatur,-*in the same manner as when an indictment for a common law offence concludes against a statute. But when the statutes are not recited, but there is merely the conclusion, *contra formam*&c., that in the plural cannot be received’ as the substitute for one in the singular, because the two conclusions are essentially different in meaning, and the one is so opposed to the other as to be incapable of such a modification as being turned into the other; and, furthermore, because the conclusion in the plural cannot be treated as surplusage, since, if stricken out, the indictment would fail, without inserting in its plae'e the word statuti, for which there is no authority. While a reference to the statutes is deemed of the substance of pleading, it would seem upon principle, that the conclusion must be in the singular or plural accordingly as the of-fence may depend on one or more statutes. And we think it equally well supported by authority. That a conclusion *contra formam statutorumis*not good, when there is but one statute, though not the point adjudged, was laid down by the court in *Andrew*v *The Hundred of Lewkner,*Yelv. 116, is quoted thence without a question by Sergeant Hawking, P. C. 1, B. C. 25, S. 117, and is repeated without qualification, and as clear law, not needing the support of authorities, by Sergeant Williams. 2 Saund. 377, note 12; besides being thus stated by subsequont text-writers. It might perhaps have been well, if the distinction had never *577been allowed; and it is obvious, that it was never in much favor, for the courts tolerated an evasion of the rule, by permitting, when the proceedings were in latin, a contraction, thus, *contra formam statut.,*and construing it to be *statuti*or *statutorum,*as the one or the other happened in each case to be proper. It might have been more creditable to have abolished at once a form of pleading thus readily dispensed with. But it is certain that, after the subterfuge was taken away by the pleadings being turned into English, the rule yet remained in full force in England, until within a very recent period. It is only by the Stat. 7 Geo. 4 c. 44-5, s. 20, that it was enacted, “that judgment shall not, after verdict, be stayed or reversed for the insertion of the words “ against the form of the statute,” instead of the words. “ against the form of. the statutes,” or *vice*versa-.” This statute of itself furnishes cogent proof- of the law, as it stood ante-cedently. Until a similar one shall be enacted here, however; our courts must recognize and enforce the rule as found at the common law. But this case may, perhaps, be turned to profitable account by again attracting attention to the subject, as one proper for legislative consideration.

Per Curiam. Judgment arrested.