{ "id": 1569952, "name": "State v. Blumenthal", "name_abbreviation": "State v. Blumenthal", "decision_date": "1918-04-15", "docket_number": "", "first_page": "532", "last_page": "537", "citations": [ { "type": "official", "cite": "136 Ark. 532" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "10 N. E. 570", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "109 Ind. 527", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1314008 ], "opinion_index": 0, "case_paths": [ "/ind/109/0527-01" ] }, { "cite": "61 Mo. 276", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 943700 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/mo/61/0276-01" ] }, { "cite": "133 S. W. 1037", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "97 Ark. 272", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1318831 ], "opinion_index": 0, "case_paths": [ "/ark/97/0272-01" ] }, { "cite": "44 Ark. 265", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893434 ], "opinion_index": 0, "case_paths": [ "/ark/44/0265-01" ] }, { "cite": "10 Ohio St. Rep. 287", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 516178 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ohio-st/10/0231-01" ] }, { "cite": "12 Am. Rep. 302", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "26 Mich. 106", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1308933 ], "opinion_index": 0, "case_paths": [ "/mich/26/0106-01" ] }, { "cite": "12 Conn. 487", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 6753100 ], "opinion_index": 0, "case_paths": [ "/conn/12/0487-01" ] }, { "cite": "54 Vt. 83", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4449258 ], "opinion_index": 0, "case_paths": [ "/vt/54/0083-01" ] }, { "cite": "27 N. J. Law, 323", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 372066 ], "opinion_index": 0, "case_paths": [ "/njl/27/0323-01" ] }, { "cite": "101 Am. St. Rep. 21", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "36 South. 19", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": 0 }, { "cite": "139 Ala. 136", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8489261 ], "opinion_index": 0, "case_paths": [ "/ala/139/0136-01" ] }, { "cite": "131 Ark. 129", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1578688 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/131/0129-01" ] } ], "analysis": { "cardinality": 498, "char_count": 10041, "ocr_confidence": 0.506, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.3647436588001849 }, "sha256": "0483e37ec03cb2ceaae1c577cc8667129c76d69c2bd60965f7eea0fdfaa0107c", "simhash": "1:8b76b9f04e04fe31", "word_count": 1786 }, "last_updated": "2023-07-14T15:48:26.542033+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "State v. Blumenthal." ], "opinions": [ { "text": "Hart, J.\nThis appeal is prosecuted by the State to reverse a judgment sustaining a demurrer to an indictment for arson against Dr. H. M. Blumenthal. There was an agreement between counsel for the State and for the defendant that it was the intention in the indictment to charge the defendant with wilfully and maliciously and feloniously setting fire to and burning a dwelling house belonging to Mrs. Sallie A. Hancock while he was in possession of it and occupied as her tenant. It appears from the record that the court below sustained the demurrer upon the agreed statement of facts.\nWe will treat the indictment as the parties themselves, and the court below treated it as presenting for decision the question of whether or not under our statute a tenant can be guilty of arson in setting fire to and burning the dwelling house of his landlord occupied by him. In the case of the State v. Hanna, 131 Ark. 129, the court held that the burning of a house by the owner does not constitute the crime of arson at common law for the reason that it is essential to the common-law offense that the property burned should be that of another person. The court further held that the common-law rule in this respect has not been changed by our statute defining arson.\n(1)) At common law not only the bare dwelling house, but all the outhouses which are a parcel thereof, though not contiguous thereto, or under the same roof, as barns and stables, may be the subject of arson. Cooley's Blackstone, Book 4, *p. 221, and Greenleaf on Evidence (15 Ed.) vol. 3, par. 52. In the same section the learned author says that if a landlord or reversioner sets fire to his own house, of which another is in possession under a lease from himself, or from those whose authority he hath, it shall be accounted arson.\n(2) Under the common law and under statutes which follow the common law and make no changes in it, arson is an offense against the possession rather than against the property itself; and a tenant who is in possession of and in actual occupancy of the building burned, under a lease, can not be guilty of arson in burning it. State v. Young, 139 Ala. 136, 36 South. 19, 101 Am. St. Rep. 21; State v. Fish, 27 N. J. Law, 323; State v. Hannett, 54 Vt. 83; State v. Lyon, 12 Conn. 487; Snyder v. People, 26 Mich. 106, 12 Am. Rep. 302, case note 1 A. & E. Ann. Cas. at page 621; Greenleaf on Evidence (15 Ed.) vol. 3, par. 54; Wharton on Criminal Law (11 Ed.), vol. 2, \u00a7 1051; Bishop\u2019s New Criminal Law, vol. 2, \u00a7 13. In Allen v. State, 10 Ohio St. Rep. 287, the court pointed out that at common law for a tenant to burn a building belonging to another, of which he was in possession, was a high misdemeanor, and punished by fine and pillory and surety required for future good behavior.\n(3) The section of our statute which defines arson reads as follows:\n\u201cArson is the wilful and malicious burning the house or other tenements of another person.\u201d Kirby's Digest, \u00a7 1575.\nThis section was a part of the Revised Statutes, and it is a rule of construction in this State that the common law in force at the time the statute was passed is to be taken into account in construing the statute. State v. Pierson, 44 Ark. 265; Furth v. Furth, 97 Ark. 272, 133 S. W. 1037, Ann. Cas. 1912-D, 595, and State v. Hanna, supra. In the first mentioned case Chief Justice Cook-rill said:\n\u201cCoke says, \u2018To know what the common law was before the making of the statute is the very lock and key to set open the windows of the statute. \u2019 \u2019\nIt must be assumed, then, that the lawmakers had in mind the above summary of the common law when they framed our section of the statute defining arson. The question is whether or not the definition .given arson in the statute has made any change which affects this case.\nThe words \u201chouse\u201d in the definition of arson at the common law imports a dwelling house; and as we have already seen the term \u201cdwelling house\u201d comprehends not only the mansion house, but all outhouses which are a parcel thereof, though not contiguous to it. The words \u201cor other tenement\u201d are not to be deemed to have been used in the statute as synonymous with the word \u201chouse.\u201d Tenement in its broadest sense signifies everything that may be holden, provided it be of a permanent nature. In its restrictive sense it is only applied to houses and other buildings. Blackstone, Com. by Lewis, Book 2, *p. 17. The word \u201cother,\u201d as defined by the Century Dictionary, means a different person or thing from the one in view or under consideration or just specified; additional. So it may be said that the word \u201chouse\u201d means the dwelling house and outhouses which are a part thereof, and the words \u201cor other tenement\u201d mean a house occupied by a tenant. This would give effect to and harmonize the words used in the statute. The use of the word \u201cother\u201d in connection with the word \u201ctenement\u201d emphasizes the fact that the Legislature did not intend to use those words as synonymous with the word \u201chouse.\u201d For the word \u201cother\u201d indicates that the Legislature had in view a building different from the one just specified. In short, we are of the opinion that the framers of the statute in defining arson intended to abrogate the common-law rule that a lessee could not be guilty of a felony in burning the premises occupied by him as such.\nCounsel for the State, in support of their contention, cite the cases of State v. Moore, 61 Mo. 276; Allen v. State, 10 Ohio St. 287; Garrett v. State, 109 Ind. 527, 10 N. E. 570, and other cases of like character. We have not cited these cases or referred to them as sustaining the conclusion reached by the court for the reason they were rendered under statutes which have wrought many and radical changes in the common-law offense of arson. All of these cases, however, recognized the common'law to be as we have stated it. Indeed the common law on the subject is established by an unbroken chain of decisions, English and American. An examination of the statutes of each of the States in the cases cited by counsel for the State show that they have no section of the statute defining arson as we have. The statutes on their faces indicated that the Legislature intended to make radical and sweeping changes in the common law. For instance section 1 of the Missouri statute (Wag.. St. c. 42, art. 8) makes it arson in the first degree to set fire to or burn any dwelling house, bridge, etc., in which there shall be at the time some human being. Section 3 provides that setting fire to a shop, warehouse, etc., adjoining any inhabited dwelling house, shall be arson in the second degree. Section 5 provides that setting fire to or burning any house, building, etc., or vessel of another, shall be arson in the third degree.\nIn the case of the State v. Moore, supra, the court held that under the statutory provisions of arson in the State of Missouri the offense in the third degree was directed not at the possession, but at the property of another, and on that account made a radical change in the common law, so that a tenant might commit arson with respect to the house occupied by himself. Both the Ohio and the Indiana statutes made it arson to burn the house of any other person of a certain designated value. There were also other provisions in the statutes indicating the intention of the Legislature to make radical changes in the common law. It was also said that the statutes against the burning of buildings were not confined to the common-law offense in those States. Therefore we have preferred to place our decision upon what we believe to be the plain and ordinary meaning of the words used in the statute when taken in connection with the other words used and the common law on the subject. In our other cases on the subject the court has recognized that the common-law definition of arson has not been materially changed, except to add other buildings which were not the subject of arson at the common law.\nIt follows that the circuit court erred in holding that, under our statute, the tenant or lessee in possession was not guilty of arson if he burned the dwelling of which he was in possession.\nTherefore the judgment will be reversed, with directions to overrule the demurrer, and for further proceedings according to law.", "type": "majority", "author": "Hart, J." } ], "attorneys": [ "jno. D. Arbuchle, Attorney General, and T. W. Campbell, Assistant, for the State." ], "corrections": "", "head_matter": "State v. Blumenthal.\nOpinion delivered April 15, 1918.\n1. Arson \u2014 subject of offense \u2014 dwelling houses and outbuildings. \u2014 At common law\" not only the bare dwelling houses, but all the outhouses which are a parcel thereof, though not contiguous thereto, or under the same roof, may be the subject of arson.\n2. Arson \u2014 burning by tenant. \u2014 Under the common law, arson is an offense against the possession rather than against the property itself, and a tenant in possession of the building burned can not be guilty of arson in burning it.\n3. Arson \u2014 burning by tenant \u2014 statutes\u2014\u201chouse\u201d\u2014\u201cdwelling house\u201d \u2014 \u201ctenement\u201d\u2014\u201cor other tenement\u201d \u2014 \u201cother.\u201d\u2014Under Kirby\u2019s Dig., \u00a7 1575, defining arson as the willful and malicious burning of the house or other tenement of another person, a tenant who burns a dwelling house of which he is in possession is guilty of arson, the statute being intended to abrogate the common-law rule; the word \u201chouse\u201d in the definition of \u201carson\u201d at common law importing a \u201cdwelling house,\u201d which comprehends outhouses which are a parcel thereof, though not contiguous thereto, the words \u201cor other tenement\u201d not being used in the statute as synonymous with \u201chouse,\u201d \u201ctenement\u201d signifying everything that may be holden, if of a permanent nature, and in its restrictive sense applying only to houses and other buildings occupied by a tenant, and the word \u201cother\u201d meaning a different person or thing from the one under consideration or just specified, in the sense of \u201cadditional.\u201d\nAppeal from Cross Circuit Court; W. J. Driver, Judge.\nDr. H. M. Blumenthal was indicted for arson. From a judgment sustaining a demurrer to the indictment, the State appeals.\nReversed with directions.\njno. D. Arbuchle, Attorney General, and T. W. Campbell, Assistant, for the State." }, "file_name": "0532-01", "first_page_order": 560, "last_page_order": 565 }