People v. De Winton

This is an appeal by the people from an order arresting the judgment upon a conviction of arson, the question being whether the'indictment sufficiently charges the offense.

The material part of the indictment' is that: “The said William W. de Winton on,” etc., at, etc., “ did willfully, maliciously, and feloniously, in the night-time, set fire to and burn a building, namely, a house then situate,” etc., “the property of William W. De Winton, with *405 the malicious, willful, and felonious intent then and there to destroy said building.” Then follows an averment that said house was situated in such immediate proximity to inhabited buildings, occupied by human beings, as to endanger life, etc., and did, then and there, threaten the lives of said human beings from said fire, etc.

Giving effect to the presumption which the law raises of identity of person from identity of name (Code Civ. Proc., sec. 1963, subd. 25), and it will be observed that the indictment charges the defendant with the burning of his own building.

At common law a man was not guilty of arson in willfully burning his own house, unless the house of his neighbor was thereby also burned; and this, even though the…