Fisher

The offense with which the defendant is charged by the indictment amounts only to arson in the second degree, as defined by section four hundred and fifty-four, Penal Code. When the indictment, as in this case, charges only the lowest degree of a crime, as defined by the Code, it is unnecessary for the jury to specify in the verdict the degree of the crime of which the defendant is found guilty.

The house alleged to have been burned is described as the property of one B. W. Bours. It was proven that it was his property, but that one Capurro was in possession of it under a lease from Bours; and the point is made that, in this respect, there is a variance between the indictment and the proof; in other words, that, in an indictment for arson, the house should be described as the house of the occupant.

Arson, as defined by the common law, is an offense against the security of the habitation, rather than against the property which was burned (2 Bish. Cr. Law, Sec. 24); but by the Penal Code, sections four hundred and forty-seven and four hundred and forty-eight, the scope of the definition is materially extended. “Any house, edifice, structure, vessel or other erection, capable of…