#### STATE v. REGINALD CUTHRELL.

(Filed 27 February, 1952.)

1. Criminal Law § 53f—

An instruction to tbe jury may not assume as true tbe existence or nonexistence of any material fact in issue. G.S. 1-180.

2. Arson § 2—

A “building” witbin tbe meaning of tbe arson statute (G.S. 14-62) is a structure wbicb bas arrived at sucb a stage of completion as to be usable for some useful purpose.

3. Same—

“Used” as employed in tbe arson statute (G.S. 14-62) means put to use in tbe occupation or business, and a single isolated instance may be sufficient. “Trade” as used in tbe arson statute embraces any ordinary occupation or business.

4. Arson § 8—

In a prosecution of defendant for willfully and feloniously procuring another to burn a building used in carrying on a trade, upon evidence permitting an inference that tbe structure bad not been completed or used in the trade at tbe time of tbe fire, tbe court should submit to tbe jury tbe question of whether tbe structure bad been completed witbin the meaning of tbe statute and whether it bad been put to use in the occupation or business for which it was intended, and an instruction wbicb assumes each of these facts must be held for prejudicial error.

5. Statutes § 11—

A statute creating an offense unknown to tbe common law must be construed as written.

Appeal by defendant from *Crisp, Special Judqe,*and a iury, at August Term, 1951, of CamdeN.

Criminal prosecution tried upon a bill of indictment charging tbe defendant with tbe statutory felony of willfully and feloniously procuring Bobby Gene Bowers to burn a building located at a beacb in Camden County and used by E. B. Cutbrell in carrying on a trade. (G.S. 14-62.)

Tbe case was bere on former appeal and was sent back because of error in tbe admission of evidence, 233 N.C. 274, 63 S.E. 2d 549.

On retrial, tbe State introduced Bobby Gene Bowers as a witness. He testified be burned tbe structure upon tbe procurement and counsel of tbe defendant and for a reward promised bim by tbe defendant. E. B. Cutb-rell then testified concerning tbe nature and condition of tbe structure wben it was burned on 5 May, 1950. He said it was a frame structure about four or five feet above tbe water’s edge at tbe beacb, witb entrance from tbe shore, and a terrace-porch out on tbe water side. It was a restaurant, — confectionary type of business, intended for organization *174suppers like ebureb and Sunday school picnics. It was a new building. Tbe fixtures and equipment were new. Some of tbe fixtures and equipment were in tbe building, but all bad not been uncrated at tbe time of tbe fire. Tbe building was “practically built.” It lacked “about two weeks for two carpenters for painting, adding on banisters and some work from tbe inside tbat needed to be done.”

Tbe State’s witness, Cutbrell, further testified: “It was about a week before tbe fire tbat I bad tbe opening night. ... I bad one college dance tbat used it without any sales, only for tbe floor. . . .”

There was a verdict of guilty as charged, and from judgment thereon tbe defendant appealed.

*Attorney-General McMullan, Assistant Attorney-General Love, and R. B. Broughton, Member of Staff, for the State.*

*John A. Wilkinson and H. S. Ward for 'defendant, appellant.*

JOHNSON, J.

Throughout tbe charge tbe trial court seems to have assumed tbat tbe structure alleged to have been burned was “a building . . . used in carrying on . . . trade . . .” within tbe meaning of tbe statute (G.S. 14-62), whereas this involved disputed questions of fact which should have been determined by tbe jury under proper instructions by tbe court.

This statute makes it a felony to “. . . wantonly and wilfully . . . cause to be burned, or . . . procure tbe burning of (description of several types of building not pertinent to this case) or *any building or erection used in carrying on any trade or manufacture,*...” (Italics added).

Tbe indictment in tbe instant case charges, among other things, tbat tbe defendant wilfully and feloniously procured Bobby Gene Bowers to set fire to and burn *“a certain building used in carrying on a trade,*to wit: a building in which was operated a restaurant and used for tbe sale of soft drinks and various confectionaries under tbe name of Texaco Beach, . . . said building being ... in tbe possession of R. B. Cuthrell . . .” (Italics added).

Therefore, tbe burden rested on tbe State to prove tbat tbe defendant unlawfully procured tbe burning of (1) a structure tbat answered to tbe description of a “building” within the meaning of tbe statute, and also (2) tbat tbe structure was “used in carrying on a trade,” within tbe purview of tbe statute. Findings by tbe jury concerning these two elements of tbe statutory offense charged were quite as essential to a conviction as proof of tbe fact of procuring tbe burning of tbe structure. Tbe rule is tbat tbe trial court in charging a jury may not give an instruction which assumes as true tbe existence or nonexistence of any material fact in issue. *175See G.S. 1-180 as rewritten. *S. v. Love,*229 N.C. 99, 47 S.E. 2d 712; *Perry v. R. R. Co.,*171 N.C. 158, 88 S.E. 156; 53 Am. Jur., Trial, Sec. 605. Besides, tbe defendant’s plea of not guilty put to test tbe credibility of tbe testimony bearing upon these essential elements of tbe crime charged. *S. v. Snead,*228 N.C. 37, 44 S.E. 2d 359; *S. v. Stone,*224 N.C. 848, 32 S.E. 2d 651; *S. v. Peterson,*225 N.C. 540, 35 S.E. 2d 645; *S. v. Davis,*223 N.C. 381, 26 S.E. 2d 869; *S. v. Singleton,*183 N.C. 738, 110 S.E. 846.

Tbe duty rested upon tbe trial court to define and explain to tbe jury tbe meaning of (1) “building,” and (2) “used in carrying on any trade,” as used in tbe statute.

1. *Building.*— Tbe word “building” embraces any edifice, structure, or other erection set up by tbe band of man, designed to stand more or less permanently, and which is capable of affording shelter for human beings, or usable for some useful purpose. See 4 Am. Jur., Arson, Sec. 16; Curtis, The Law of Arson, Sec. 28, p. 38; 6 C.J.S., Arson, Sec. 6, p. 725; Webster’s New International Dictionary, 2d Ed.; Funk & Wagnall’s New Standard Dictionary. Ordinarily, in tbe absence of a statute to tbe contrary, an uncompleted structure, not ready for occupation or use, is not a “building” as that term is generally used in tbe law of arson. 6 C.J.S., Arson, Sec. 6, p. 728; 5 C. J., pp. 551 and 552; *Davis v. State,*153 Ala. 48, 44 So. 1018. However, by tbe weight of authority, tbe word “building” as used in criminal burning statutes, does not necessarily imply a structure so far advanced as to be in every respect finished and perfect for tbe purpose for which it is designed eventually to be used; and if tbe structure is so far advanced in construction, although not completed, as to be ready for habitation or use, tbe burning of it may be violative of tbe statute. See 2 Am. Jur., Arson, Sec. 16; 71 Am. St. Rep. 266; 6 C.J.S., Arson, Sec. 42, p. 767; Curtis, The Law of Arson, Sec. 40, p. 45. Therefore, tbe question whether a structure has arrived at such a stage of completion as to constitute it a building may be and frequently is a question of fact for tbe jury to determine. 4 Am. Jur., Arson, Sec. 16.

2. *Used in carrying on any trade.*— In this phrase, tbe crucial words of tbe statute are “used” and “trade.”

Tbe verb “used,” when referring to a place or thing, has two meanings recognized by all lexicographers and usually differentiated in common speech: (1) In one sense the word means to be tbe subject of customary occupation, practice, or employment. In this sense tbe word denotes tbe idea of habitual use, and implies a certain degree of continuity and permanence, and is sometimes used synonymously with tbe word “occupied.” 66 C.J., pp. 74 and 75 (see also pp. 72 and 73); *Cuthrell v. Ins. Co.,*234 N.C. 137, 66 S.E. 2d 649. See also Funk *&*Wagnall’s New Standard Dictionary. (2) In another sense tbe word means to employ for a purpose, to put to its intended purpose," application to an end, tbe act of *176using. 43 Words and Phrases, Perm. Ed., p. 48 *et seq.*In this sense a single isolated instance may be sufficient to fulfill the meaning of the word. 66 C.J., pp. 74 and 75; *S. v. Gastonguay,*118 Me. 31, 105 A. 402. We think it is in this latter sense that the word “used” was intended to be employed in the statute at hand. Here it must be borne in mind we are dealing with a word that is descriptive of a criminal offense, as distinguished from fixing a contractual status. *(Cuthrell v. Ins. Co., supra.)*

The word “trade” as used in this statute means more than traffic in goods, and the like. It is used in its broader sense, and as such is synonymous with “occupation” or “calling.” Thus the word “trade” as here used embraces any ordinary occupation or business, whether manual or mercantile. 63 C.J., pp. 231 and 234. 42 Words and Phrases, Perm. Ed., p. 152 *et seq.*

Accordingly, on the record as presented, it was for the jury to find and declare by their verdict, among other things, (1) whether the structure alleged to have been burned had arrived at such a stage of completion as to be usable for some useful purpose so as to make it a building within the meaning of the statute, and, if so, (2) whether it had been put to use in the occupation or business of the lessee Cuthrell prior to the fire.

The action of the trial court in assuming the existence of these disputed facts was prejudicial error.

The situation here presented brings into focus the need for clarifying the instant statute. Manifestly, its application in cases like this one would be simplified by extending its provisions to cover any structure, whether completed or in process of construction, used or intended to be used in any trade or manufacture. This, however, is a matter of policy to be pondered and determined solely by the lawmaking body. Here it must be borne in mind that the common law crime of arson embraces only a dwelling house and such structures as are within the curtilage. The extension of the crime, in modified forms, to the burning of other, buildings and structures rests entirely upon statutory grounds. Therefore, in dealing with these felonious burning cases the courts can only construe and interpret the statutes as written.

For the reasons given, there must be a

New trial.