Commonwealth v. Starr

Schuylkill County Court of Quarter Sessions

Commonwealth v. Starr

6 Pa. D. & C. 409, 1924 Pa. Dist. & Cnty. Dec. LEXIS 368

CourtSchuylkill County Court of Quarter Sessions

DecidedNovember 10, 1924

DocketNo. 194

StatusPublished

This text of 6 Pa. D. & C. 409 (Commonwealth v. Starr) is published on Counsel Stack Legal Research, covering Schuylkill County Court of Quarter Sessions primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Starr, 6 Pa. D. & C. 409, 1924 Pa. Dist. & Cnty. Dec. LEXIS 368 (Pa. Super. Ct. 1924).

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Opinion

Bergek, J.,

The defendant was indicted and convicted of arson under section 137 of the Act of March 31, 1860, P. L. 415. A motion in arrest of judgment has been filed on the ground that the evidence of the Commonwealth does not sustain the conviction. The defendant was twice tried, the first jury having disagreed. On the second trial, the case was reluctantly submitted to the jury on the precedent established by the judge who presided over the first trial. It is established by the verdict that the defendant, on Feb. 3, 1924, maliciously and voluntarily set fire to and burned a barn, the property of Edgar C. Steigerwalt. The house which the Commonwealth contends was a dwelling-house, of which the barn was a parcel, or belonged or adjoined thereto, was eighty to one hundred yards distant from the barn, separated from it by a public road, and it was not burned. The house had not been used as a habitation for man at least eight years prior to the time that the barn was burned. In construing the 137th and 138th sections of the Act of March 31, 1860, P. L. 415, in Com. v. Braunfeldt, 72 Pa. Superior Ct. 25, 30, Porter, J. said: “The Penal Code of 1860, in sections 137, 138 and 139, defined the crime of arson under different circumstances and conditions and provided distinct punishment for different kinds of the offence. When a person wilfully and voluntarily burns any factory, mill or dwelling-house of another, or any barn (or other building) that is a parcel of such dwelling, he is, under the provisions of the 137th section, guilty of a felony, and, upon conviction, may be imprisoned for twelve years. If any person shall wilfully and maliciously burn any barn, stable or other building of another, not parcel of the dwelling-house, he shall, under the 138th section, be guilty of a misdemeanor, and, upon conviction, may be imprisoned for ten years.”

At common law, arson is an offence against the habitation, and regards the possession rather than the property. A dwelling-house, in its popular sense, is a building fit for the habitation of man, either in actual use for that purpose or temporarily vacant. A building designed for a dwelling-house, con[410]*410structed in the usual manner, hut not yet entirely finished and not yet occupied, is not a house which can be the subject of arson at common law, and this rule also applies to houses which have not yet been occupied as residences, or, having been occupied, have been finally abandoned. See 2 Wharton’s Criminal Law (11th ed.), 1267. The facts found by the jury would support a conviction under the 138th section of the Penal Code, but they do not support a conviction under the 137th section thereof. Therefore, we are constrained to sustain the motion in arrest of judgment.

And now, Nov. 10, 1924, motion in arrest of judgment is sustained.

From M. M. Burke, Shenandoah, Pa.

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Bergek, J.,

The defendant was indicted and convicted of arson under section 137 of the Act of March 31, 1860, P. L. 415. A motion in arrest of judgment has been filed on the ground that the evidence of the Commonwealth does not sustain the conviction. The defendant was twice tried, the first jury having disagreed. On the second trial, the case was reluctantly submitted to the jury on the precedent established by the judge who presided over the first trial. It is established by the verdict that the defendant, on Feb. 3, 1924, maliciously and voluntarily set fire to and burned a barn, the property of Edgar C. Steigerwalt. The house which the Commonwealth contends was a dwelling-house, of which the barn was a parcel, or belonged or adjoined thereto, was eighty to one hundred yards distant from the barn, separated from it by a public road, and it was not burned. The house had not been used as a habitation for man at least eight years prior to the time that the barn was burned. In construing the 137th and 138th sections of the Act of March 31, 1860, P. L. 415, in Com. v. Braunfeldt, 72 Pa. Superior Ct. 25, 30, Porter, J. said: “The Penal Code of 1860, in sections 137, 138 and 139, defined the crime of arson under different circumstances and conditions and provided distinct punishment for different kinds of the offence. When a person wilfully and voluntarily burns any factory, mill or dwelling-house of another, or any barn (or other building) that is a parcel of such dwelling, he is, under the provisions of the 137th section, guilty of a felony, and, upon conviction, may be imprisoned for twelve years. If any person shall wilfully and maliciously burn any barn, stable or other building of another, not parcel of the dwelling-house, he shall, under the 138th section, be guilty of a misdemeanor, and, upon conviction, may be imprisoned for ten years.”

At common law, arson is an offence against the habitation, and regards the possession rather than the property. A dwelling-house, in its popular sense, is a building fit for the habitation of man, either in actual use for that purpose or temporarily vacant. A building designed for a dwelling-house, con[410]*410structed in the usual manner, hut not yet entirely finished and not yet occupied, is not a house which can be the subject of arson at common law, and this rule also applies to houses which have not yet been occupied as residences, or, having been occupied, have been finally abandoned. See 2 Wharton’s Criminal Law (11th ed.), 1267. The facts found by the jury would support a conviction under the 138th section of the Penal Code, but they do not support a conviction under the 137th section thereof. Therefore, we are constrained to sustain the motion in arrest of judgment.

And now, Nov. 10, 1924, motion in arrest of judgment is sustained.

From M. M. Burke, Shenandoah, Pa.

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6 Pa. D. & C. 409, 1924 Pa. Dist. & Cnty. Dec. LEXIS 368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-starr-paqtrsessschuyl-1924.

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