#### Kopcyznski, Plaintiff in error, vs. The State, Defendant in error.

*December 1*—

December *15, 1908.*

*Criminal law and, practice: Arson: 'Nature of offense: Dwellings: Persons liable: I-IusbanA and wife: Indictment and information: Allegations of ownership: Status of title to property: Materiality. .*

1. The offense of burning the dwelling house of another, covered by sec. 4399, Stats. (1898), is the same as that of such burning by common law.

2. The offense of burning the dwelling house of another relates to the security of the habitation, not to that of property.

3. In case of the felonious burning of the dwelling house of another, the idea is that the house of such other is his to occupy as a habitation, regardless of the title to the property. One may be guilty by burning his own house, when it is the dwelling house *359of another, hot cannot if it is his own habitation. So neither husband nor wife can be guilty of such offense by burning the dwelling house which they jointly occupy as a home, regardless of the status of the title.

4. In charging the offense of burning the dwelling house of another;, it is proper to allege the dwelling house to be that of him who occupies the structure as a habitation, though he may have no property right therein.

5. The rule that a husband or wife cannot be, under any circumstances, properly charged with the offense of burning the dwelling house which the two jointly occupy as 'their habitation, does not apply where it is the habitation of but one; the other, though the marital relations still exist, having left the same to reside elsewhere.

6. In the case last suggested, the status of the title to the property is immaterial, except as it may bear on the question of fact respecting joint occupancy of the property burned as a dwelling house.

[Syllabus by Maesitall, J.]

ERROR to review a judgment of the circuit court for Marathon county: W. 0. Silverti-iorw, Circuit Judge.

*Affirmed.*

' Plaintiff in error avus charged under sec. 4399, Stats. (1898), with burning the dwelling house of Julia Kopcyzn-ski, November 6, 1905, no person being lawfully therein. The cause was tried on a plea of not guilty. There was evidence to this effect: The accused at the time of the occurrence was the lawful husband of Julia Kopcyznski. They had lived on the farm on which the house was located for some twenty years before they separated as hereafter stated. Some time in 1904 the accused deeded the farm to his wife, she then giving him $500, which he claimed had been previously given to her by him for safe-keeping, but which she claimed was her money. Prior to the time the farm was so deeded the parties had serious trouble. After the settlement, including the deeding of the farm and payment of the money, it was understood the accused could stay on the place so long as he behaved himself. About a year thereafter trouble commenced again and became quite serious. He was a mason and accustomed to be away from home working at his trade a considerable portion of his time. Shortly before the *360fire the parties fiad, trouble. Sfie commenced an action for divorce and fie left fióme, taking substantially all fiis personal belongings with. fiim. He was not tfien working at fiis trade. He returned Uovember 2d, apparently for tfie purpose, only, of making some settlement with fiis wife. He remained in tfie house over night, Mrs. Kopcyznsld sharing her bed with fiim, by compulsion as sfie claimed, but otherwise as fie claimed. He left tfie next morning, but soon returned, when sfie, becoming frightened because of fiis conduct, went away. "November 3d fie was arrested upon the complaint of fiis wife for assault. He did not stay at the house thereafter. On tfie night of tfie 5 th and 6th the house was burned, and there was evidence tending to show that fie set tfie fire. Tfie jury rendered a verdict of guilty.

For tfie plaintiff in error there was a brief by Brown> *Pradb, Genrich &*Anderson, and oral argument by *F. W. Genrich.*

For tfie defendant in error tfiere was a brief by the *Attorney General*and *J. E. Messer schmidt,*assistant attorney general, and oral argument by *Mr. Messer schmidt.*

Maesiiall, J.

It is conceded, as the fact is, that — unless suggestions hereafter mentioned should be approved, giving to the words of tfie written law a different signification than tfie same words have commonly — tfie offense with which tfie accused was charged is the same as tfie common-law offense of felonious burning of tfie dwelling house of another, which relates to tfie security of the habitation of tfie person characterized as “another” regardless of tfie location of tfie title to tfie property. Tfie idea is that tfie structure burned, in any given case, is tfie property of tfie person named, as owner to occupy as a dwelling house. 2 Bishop, Hew Grim. Law, § 12. So it has been commonly field that- one cannot, without *some*written law to tfie contrary, be guilty of arson by burning fiis own dwelling house. Heitfier can tfie wife or husband, because of their legal identity and common occupancy *361of the Rome, be guilty of arson by burning their habitation, regardless of the one in whom the title rests. McClain, Grim. Law, § 521. So it has been supposed to be sufficient, in prosecuting for the serious violation of the home of burning it under circumstances satisfying the essentials of arson, to charge, as regards the property destroyed, that it is the dwelling bouse of the one who happens to be in possession thereof as a home, and, generally speaking, though the title be in the person who sets the fire, the structure not being his dwelling place. *State v.*Fish, 27 N. J. Law, 323; *Sullivan v. State,*5 Stew. & P. 175; *Young v. Comm.*12 Bush, 243; *People v. Wooley,*44 Cal. 494; *Burger v. State,*34 Neb. 397; 51 N. W. 1027; *May v. State,*85 Ala. 14, 5 South. 14; *Avant v. State,*71 Miss. 78, 13 South. 881. So a person may be charged with being guilty of arson by burning his own house, if it is at the time of the occurrence the home of his tenant instead of himself. Many illustrations might be given, but there is no need thereof.

The assistant attorney general contends that the common-law rule, stated, has been changed by the written law; that the general spirit of our statutes on the subject of felonious burning and other subjects indicates that the legislative purpose was to change the nature of the particular offense to one distinctively against property, instead of against the security of the home. Attention is called-to the fact that such offense is classified in the statutes, as it has been from the first, with other burnings of buildings, and criminal violations of property rights, under the head of “Offenses Against Property,” and that it is expressly provided now that a lessee or tenant of a dwelling house, who violates his own home by feloniously burning it, is guilty of burning the dwelling house of another. The argument is not without merit, though it is the opinion of the court that the particular invasion of the common-law rule, while retaining the set phrase, “dwelling house of another,” indicates a legislative intention to retain the common-law features of arson, except as thus changed.

*362Counsel for the accused combat the idea that, in general, the nature of the act of felonious burning of the dwelling house of another has been changed by the written law, by pointing to the statute of the state of Michigan, which antedates ours and is substantially the same, word for word, and by which, from the beginning, the particular offense was also classified with offenses against property, and also refers to *Snyder v.*People, 26 Mich. 106, construing such statute and holding the offense to be the same as at common law and that, in harmony therewith, “a husband, living with his wife, and having a rightful possession, lawfully with her, of a dwelling house which she owns and they both occupy,” is not capable of committing the crime of arson, by burning it. The reasoning in such case seems logical and the result reached sound.

■The foregoing conclusion by no means is controlling in favor of the accused on the facts of this case. The basis for the rule, carefully stated by the Michigan court, and by it carefully fenced about, is now absent. In saying this we assume the fact to be, as found by the jury — and upon sufficient evidence, in our opinion, to prevent such finding from now being rightfully disturbed, — that the accused was not living with Mrs. Kopcyznski at the *time*of the *wrongful act;*that they were not jointly occupying the home, but that it was occupied solely by her-as her habitation and that of her son. As the assistant attorney general suggests, the Michigan court repudiated any intention of holding that under such circumstances the offense would not be arson. It is the opinion of the court that such is the offense. There is no judicial authority to the contrary brought to our attention or which w© have been able to discover, nor any reason harmonizing with the logic of the common-law rule as applied to the concurrence of, facts to which only it relates.

The result is, in the opinion of the court, a married man can commit the crime of arson by burning the home of his wife with whom he is not living and from which he has been *363excluded, or excluded himself, aud the question of in whom the title to the property rests, at least unless expressly alleged, is immaterial except as evidentiary, with other circumstances, hearing on the question of dwelling together under-the same roof or not, at the time of the wrongful act.

*By the Court.*— Judgment is affirmed.