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Stato o. Upchurch.

the greater the likelihood, that they would be known and capable of proof; and, certainly, some reason ought to be given in explanation of the extraordinary circumstance, that, not withstanding the bonds were written and executed at the same time and on the same sheet of paper they should be dated differently, so as to purport to have arisen from different transactions. We must say, that, in our judgment, such evidence would have added greatly to the suspicions in the case, and was, therefore, fit to be laid before the jury, as tending to impair the presumption of execution, which arose from the attestation of the writer of the several instruments.

PER CURIAM. Judgment reversed and venire de novo.

TIIE STATE vs JOHN UPCHURCH.

The Act of 1846, ch. 70, entitled "an Act to protect houses and enclosures

from wilsul injury," alters the Act of 1836, 1 Rev. Stat. ch. 347, so as to reduce the offence of burning a mill-house, &c., from a selony to a misdemeanor, and substitutes the punishment of fine and imprisonment for that

of death. In this State, where one is indicted and tried as for a felony, yet the facts

averred in the indictment do not support the charge of felony, but amount

to a niisdemeanor, the Court may give judgment for such misdeineanor. Where a deseodant was convicted on an indictment for a felony and appealed

from the judgment thereon lo the Supreme Court, and the error assigned in this Court was, that the facts stated in the indictment did not amount to a felony, the Supreme Court, though it reverses the judgment for this error, yet will, (under the provisions of the Act establishing the Court) give directions to the Court below to give judgment for a misdemeanor, where it appears that is the judgment, which should have been there rendered.

Appeal from the Superior Court of Law of Franklin County, at the Spring Term 1849, his Honor Judge SETTLE presiding.

Stale v. Upchurch.

The prisoner was convicted of arson, in feloniously, unlawfully, wilfully and maliciously burning a saw millhouse, the property of Malthus D. Freeman; and, when brought up for sentence, his counsel insisted, that no sentence could be passed on him, because, since the act of 1846, the offence was but a misdemeanor; and because the indictment charged it to be a felony, and, therefore, there could not be judgment on it as for a misdemeanor. The Court, however, proceeded to judgment of death, and the prisoner appealed.

Allorney General, for the plaintiff.
No counsel for the defendant.

Ruffin, C. J. The principal question arises on the first section of the Rev. Stat. ch. 34, and the act of 1846, ch. 70. The former enacts, “that no person, who shall be convicted of any wilsul burning of any dwelling house, or any part thereof, or any barn then having grain or corn in the same, or store house, grist or saw mill-house, or any building erected for the purpose of manufacturing any article, shall be admitted to the benefit of clergy; but every person, so convicted, shall be excluded thereof and shall suffer death.” The latter is entitled "an Act to protect houses and enclosures from wilful injury;" and it enacts, “that, if any person shall unlawfully and wilfully hurn any uninhabited house, out house, or other building, or shall unlawfully and wilfully demolish, pull down, de. face, or by other ways or means destroy, injure, or damage any dwelling house, or any uninhabited house, out house, or other building, or shall anlawfully burn, &c., any fence, &c., he or she shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by fine or imprisonment or both, at the discretion of the Court, in which such conviction shall be had ;" and it further en

Stale v. Upchurch.

acts, that it should be in force from the 1st day of March following.

Several considerations induce the belief, that, by the Act of 1846, it was in fact intended merely to supply those defects in the common and statute law, whereby certain injuries to houses and enclosures were dispunishable as crimes, and treated as civil injuries only. It had been held, that burning and pulling down vacant houses or enclosures were not indictable, as for malicious mis. chief at common law; and the probability is, as urged by the Attorney General, that the Act meant simply to make acts of that kind indictable, and to leave those acts, which were before crimes, to the operation of those laws, which constituted them crimes. The hypothesis is rendered plausible by the cireumstances, that the Revised Statute specifies certain buildings as the subjects of felonious arson, while that clause in the subsequent act, which concerns burning, does not designate one of them by name; that it has no express clause of repeal, and makes no allusion in its title or body to the Revised Statute: that it was not to operate immediately, but to go into force at a future day, thus indicating a purpose to create offences thereby and to give notice of them. Moreover, it is not known, that any legislative dissatisfaction was expressed with the protection, which the previous law afforded for dwelling houses and the other erections enurnerated in the Act of 1836. Hence, it may be well argued, that the intention was to protect buildings, which were not before protected, and not to take away any protection, then ex. isting. But those considerations cannot authorize a construction in opposition to the plain words of the act. If it was a remedial statute and concerned private rights merely, they would have more weight, and, perhaps, be sufficient to justify the Court in reading the Act so as to make it meet the mischief. In questions touching crimes and punishments, however, and especially where life is

State v. Upchurch.

affected, statutes are to be received more literally, both in the provisions creating or abrogating crimes, and affixing punishments. The interpretation of such statutes is to be benignant to the accused; and, therefore, words in his favor cannot be rejected. It is perfectly settled as a rule of construction, that, if, by the common or statate law, an offence, for example, be a felony, and a subsequent statute by an enactment, merely affirmative, lessen its grade or mitigate the punishment, the latter is to that extent an implied repeal of the former. If this act had said, that the burning of any uninhabited house or out house should be a misdemeanor, then it would be clear, that the dwelling house--that is, an inhabited houseand its out-houses would have been left to the protection of the old law. The subjects of the enactments would be different and the two acts could not well stand together. But suppose that part of the act had said, in so many words, that the burning of any dwelling house, uninhabi. ted house, or out house, saw mill house, or barn, should be a misdemeanor, punishable by fine or imprisonment. In that case it could not be argued, that the former act was not repealed, which made the burning of a dwelling house or mill a capital felony. The two provisions would then be absolutely inconsistent in respect to one and the same building, mentioned specifically in both acts. In effect, it is the same thing here, at least as respects mills and the other erections mentioned in the act of 1836, excepting, perhaps, dwelling houses. It is so by force of the words "other buildings" in the act of 1846; which are broad enough to include, and do the refore include them, unless excepted expressly or by a plain and almost necessary implication. Perhaps a dwelling house may be excepted out of the operation of the clause in the act of 1846, which relates to the burning of houses, and left under the act of 1836, because, in the clause, which immediately follows, and relates to destroying or defacing

State o. Upchurch.

buildings, dwelling house is one of those enumerated and protected. “Dwelling house” was inserted there, be. cause, before, the defacing of it was not a crime, any more than the defacing of an "uninhabited house," and therefore they alike required protection then; and hence the inference is rational, that "dwelling house" may have been omitted in the prior part about burning, because it was already a felony to burn that. Perhaps, that may be so; but it is at least doubtful, and it is to be hoped the Legislature will not allow such a doubt to rest upon so important a point as the security of men's habitations from the deliberate and diabolical act of burning, and the degree of punishment to be inflicted therefor. But it that structure of the two clauses of the sentence will jus. tify that construction as to dwelling houses, it must, necessarily, be restricted to them and cannot extend it to barns and mills; because neither barns nor mills are mentioned in either clause of the act of 1846, but in both are included, if at all, under the same description, “other buildings.” For, when it is argued that those words "other buildings” do not include dwelling houses, as the subjects of arson, for the reasons just assigned ; and, therefore, that they do not include barns and mills, since, like dwelling houses, they also were protected by the Act of 1836, the answer presents itself, that these barns and mills are not within any part of the act of 1816, and thus one of its main objects would be defeated. The analogy between dwelling houses and barns and mills must necessarily be kept up throughout, it acted on at all; and therefore, if a mill be not within "other buildings” as to the burning, because a dwelling house is not, so neither can it be as to defacing or destroying, for the same rea.

Yet it is very certain, that the Legislature would be much surprised to hear, that, notwithstanding they have enacted, that wilfully to demolish, pull down, deface, or by other means destroy any dwelling house, uninhabi.

son.

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