Simpson

1. The defendant was convicted of an attempt to commit the crime of arson in the burning of a dwelling-house, of which she was in occupation as a tenant of the Borels. In the indictment, the house is alleged to have been, at the time of the burning, the property of the Borels, and the point is raised that there was a fatal variance between the proof and the indictment in this, viz., that the defendant, as a tenant in possession, is to be deemed the owner for the purposes of a prosecution of this character, and that it is not sufficient to allege the property to have been in the landlord, who was the general owner. Whatever may have been the rule at common law, we are of opinion that, under our statute in force before the adoption of the Penal Code, if the arson be committed by a tenant in possession, it will be sufficient to allege and prove the property to have been in the landlord. If this be not the correct interpretation of the statute, it would result that a tenant in possession of a dwelling-house might burn the property of the landlord, and be wholly exempt from a criminal prosecution therefor, unless the arson was committed to defraud an insurance *306 company. We are…