Eccleston, J.,
delivered the opinion of this court.
The building alleged to have been burned is described as ¿‘a certain building used as a brewery for the manufacture of beer.” And the indictment charges, that the traversers, “feloniously, wilfully and unlawfully, did set fire to” the building thus described; “and the same building, used as a brewery for the manufacture of beer as aforesaid, then and there, by such firing as aforesaid, feloniously, wilfully and unlawfully, did burn and consume, contrary to the act of Assembly in such case made and provided,” &c.
There are three counts, all being similar, except stating different owners of the property.
At the instance of the traversers the case was tried by the court, upon the plea of not guilty, without a jury.
The record states: “Whereupon the court does say that it finds the prisoners guilty of the offence as charged in the third count of the indictment, except the court does not find them guilty of having ‘feloniously’ committed the offence, the court not deeming the offence felony in law. And the court further finds them not guilty on the first and second counts of said indictment.” Upon this finding judgment was passed, by which George ICellenbeck was sentenced to undergo confinement in the penitentiary for seven years and two months, and Andrew Brash for six years and two months.
[437]*437In claiming a reversal of this judgment, it has been argued by the traversers’ counseL that the indictment contains a proper and sufficient statement of all that is essential in a case of arson. That whether the parties were or were not guilty of the charge, could not appear until the proof should be heard. And as it is evident, from the finding of the court, they did not commit the offence as charged, the court had no authority to pass judgment against them for a misdemeanor, under the second clause of the act of 1809, ch. 138, sec. 5. The traversers therefore claim the right to have the judgment reveised, and insist that the act of 1852, ch. 63, has no application to such a case as this. It prevents the reversal of a judgment, “for any matter or cause which might have been a subject of demurrer to the indictment..” But here, as the indictment, contains all that is necessary to make it valid in a case of arson, there was no ground for a demurrer which could have been used as a defence. And although the State failed to sustain the charge as laid by proof, that, surely, could not. be cause of demurrer, and, consequently, the erroneous judgment ought to be corrected by means of the present, writ of error.
It is unnecessary to inquire whether the conclusion of this argument is correct, conceding the premises on which it is based to be true, because there is an error in the premises, in a very important particular. The indictment is defective, viewing it as charging the crime of arson. The burning is no where alleged to have been done i!-maliciously,” but “feloniously, wilfully and unlawfully.”
In describing this offence it is said, in 1 Hale’s Pleas of the Crown, 566: “The felony of arson, or wilful burning of houses, is described by my Lord Coke, ch. 15, page 66, to be the malicious and voluntary burning of the house of another, by night or by day.” And again, on page 569, the same writer says: “It must be a wilful and malicious burning, otherwise it is not felony, but only a trespass.” See, also, 3 Chitty’s Crim. Law, marginal page 1104; 4 Bl. Comm., marginal pages 220, 222; 2 Russell on Crimes, 548, and 2 Last’s Crown Law, 1015.
In reference to how the offence should be charged, it is said, [438]*438in 20East’s Crown Law, ch. 21, sec. 11: “The indictment for arson at common law must lay the offence to have been done wilfully (or voluntarily) and maliciously, as well os> feloniously.” The same language is used in Wharton’s Amer. Crim. Law, 625, (3rd Ed.) And in 1 Hale’s Pleas of the Crown, 567, ch. 49, we find it said: “In cases of wilful burning of houses the indictment runs, Quodfelonnice, voluntarle et malitiose combussit domum, without saying domum mansionalem, as in case of. burglary.” See likewise the note on page 568, “as to the form of the indictment,” especially that portion of the note in regard to the act being done “maliciously. ” It ■also appears, in 3 Chitty’s Crim. Law, 1107, “the terms voluntary {or wilfully) and maliciously are requisite.” And on page 1109, this author gives the form of an indictment, in which it is said, £ feloniously, wilfully and maliciously did set fire to, and the same house then and there, by such firing as aforesaid, feloniously, wilfully and maliciously, did burn and consume.” Russell, in his Treatise on Crimes, 2nd Vol., 563, (Ed. of 1850,) says: “With respect to the indictment it may be observed, that it is clearly necessary in an indictment for arson at common law to lay the offence to have been done wilfully and maliciously; and though the words ‘wilfully and maliciously’ did not occur in the statute of 9th Geo. I., ch. 22,. now repealed, yet they seem to have been considered as necessary in an indictment upon that statute.”
From these authorities it is evident that the present indictment, as a charge of arson, is defective, and, consequently, might have been demurred to. Nor can it be considered a valid indictment for an offence under the 2nd clause in the 5th section of the act of 1809, ch. 138. Were it not liable to objection in any other respect, it is so for the reason that it fails to describe the building as “not parcel of any dwelling house.”’ The language of the clause referred to is: “Every person, his or her aiders, abettors or counsellors, who shall be duly convicted of the crime of wilfully burning any mill, distillery, manufactory, barn, meat-house, tobacco-house, stable, warehouse, or other out-house, not parcel of any dwelling house,”' &c. These latter words of exception or qualification [439]*439in relation to the houses mentioned, constitute part of the description of the crime, and being included in the enacting portion of the statute, they should be used in the indictment. Wharton’s Amer. Crim. Law, 191. Rawlings vs. The State, 2 Md. Rep., 211, 212. And as those words are not contained in this indictment, there could have been no conviction under it, for the offence described in the clause of the statute now under consideration, if the parties charged had seen fit to have filed a demurrer.
Thus it. appears that by a demurrer the traversers might have successfully defended themselves against this indictment, viewing it, as a charge of either crime which has been mentioned. And this being true, ¡he act of 1852 is applicable to the present case, notwithstanding, under the submission to the court, the judge was called on to decide the whole case, both in regard to law and fact.
The act is very comprehensive in its terms, and in the second section provides, that “no judgment upon any indictment for any felony or misdemeanor, or upon any presentment, whether after verdict, by confession, or otherwise, shall be stayed or reversed for,” (sundry matters then enumerated,) “nor for any matter or cause which might, have been a subject of demurrer to the indictment, inquisition or presentment, as the case may be.”
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Eccleston, J.,
delivered the opinion of this court.
The building alleged to have been burned is described as ¿‘a certain building used as a brewery for the manufacture of beer.” And the indictment charges, that the traversers, “feloniously, wilfully and unlawfully, did set fire to” the building thus described; “and the same building, used as a brewery for the manufacture of beer as aforesaid, then and there, by such firing as aforesaid, feloniously, wilfully and unlawfully, did burn and consume, contrary to the act of Assembly in such case made and provided,” &c.
There are three counts, all being similar, except stating different owners of the property.
At the instance of the traversers the case was tried by the court, upon the plea of not guilty, without a jury.
The record states: “Whereupon the court does say that it finds the prisoners guilty of the offence as charged in the third count of the indictment, except the court does not find them guilty of having ‘feloniously’ committed the offence, the court not deeming the offence felony in law. And the court further finds them not guilty on the first and second counts of said indictment.” Upon this finding judgment was passed, by which George ICellenbeck was sentenced to undergo confinement in the penitentiary for seven years and two months, and Andrew Brash for six years and two months.
[437]*437In claiming a reversal of this judgment, it has been argued by the traversers’ counseL that the indictment contains a proper and sufficient statement of all that is essential in a case of arson. That whether the parties were or were not guilty of the charge, could not appear until the proof should be heard. And as it is evident, from the finding of the court, they did not commit the offence as charged, the court had no authority to pass judgment against them for a misdemeanor, under the second clause of the act of 1809, ch. 138, sec. 5. The traversers therefore claim the right to have the judgment reveised, and insist that the act of 1852, ch. 63, has no application to such a case as this. It prevents the reversal of a judgment, “for any matter or cause which might have been a subject of demurrer to the indictment..” But here, as the indictment, contains all that is necessary to make it valid in a case of arson, there was no ground for a demurrer which could have been used as a defence. And although the State failed to sustain the charge as laid by proof, that, surely, could not. be cause of demurrer, and, consequently, the erroneous judgment ought to be corrected by means of the present, writ of error.
It is unnecessary to inquire whether the conclusion of this argument is correct, conceding the premises on which it is based to be true, because there is an error in the premises, in a very important particular. The indictment is defective, viewing it as charging the crime of arson. The burning is no where alleged to have been done i!-maliciously,” but “feloniously, wilfully and unlawfully.”
In describing this offence it is said, in 1 Hale’s Pleas of the Crown, 566: “The felony of arson, or wilful burning of houses, is described by my Lord Coke, ch. 15, page 66, to be the malicious and voluntary burning of the house of another, by night or by day.” And again, on page 569, the same writer says: “It must be a wilful and malicious burning, otherwise it is not felony, but only a trespass.” See, also, 3 Chitty’s Crim. Law, marginal page 1104; 4 Bl. Comm., marginal pages 220, 222; 2 Russell on Crimes, 548, and 2 Last’s Crown Law, 1015.
In reference to how the offence should be charged, it is said, [438]*438in 20East’s Crown Law, ch. 21, sec. 11: “The indictment for arson at common law must lay the offence to have been done wilfully (or voluntarily) and maliciously, as well os> feloniously.” The same language is used in Wharton’s Amer. Crim. Law, 625, (3rd Ed.) And in 1 Hale’s Pleas of the Crown, 567, ch. 49, we find it said: “In cases of wilful burning of houses the indictment runs, Quodfelonnice, voluntarle et malitiose combussit domum, without saying domum mansionalem, as in case of. burglary.” See likewise the note on page 568, “as to the form of the indictment,” especially that portion of the note in regard to the act being done “maliciously. ” It ■also appears, in 3 Chitty’s Crim. Law, 1107, “the terms voluntary {or wilfully) and maliciously are requisite.” And on page 1109, this author gives the form of an indictment, in which it is said, £ feloniously, wilfully and maliciously did set fire to, and the same house then and there, by such firing as aforesaid, feloniously, wilfully and maliciously, did burn and consume.” Russell, in his Treatise on Crimes, 2nd Vol., 563, (Ed. of 1850,) says: “With respect to the indictment it may be observed, that it is clearly necessary in an indictment for arson at common law to lay the offence to have been done wilfully and maliciously; and though the words ‘wilfully and maliciously’ did not occur in the statute of 9th Geo. I., ch. 22,. now repealed, yet they seem to have been considered as necessary in an indictment upon that statute.”
From these authorities it is evident that the present indictment, as a charge of arson, is defective, and, consequently, might have been demurred to. Nor can it be considered a valid indictment for an offence under the 2nd clause in the 5th section of the act of 1809, ch. 138. Were it not liable to objection in any other respect, it is so for the reason that it fails to describe the building as “not parcel of any dwelling house.”’ The language of the clause referred to is: “Every person, his or her aiders, abettors or counsellors, who shall be duly convicted of the crime of wilfully burning any mill, distillery, manufactory, barn, meat-house, tobacco-house, stable, warehouse, or other out-house, not parcel of any dwelling house,”' &c. These latter words of exception or qualification [439]*439in relation to the houses mentioned, constitute part of the description of the crime, and being included in the enacting portion of the statute, they should be used in the indictment. Wharton’s Amer. Crim. Law, 191. Rawlings vs. The State, 2 Md. Rep., 211, 212. And as those words are not contained in this indictment, there could have been no conviction under it, for the offence described in the clause of the statute now under consideration, if the parties charged had seen fit to have filed a demurrer.
Thus it. appears that by a demurrer the traversers might have successfully defended themselves against this indictment, viewing it, as a charge of either crime which has been mentioned. And this being true, ¡he act of 1852 is applicable to the present case, notwithstanding, under the submission to the court, the judge was called on to decide the whole case, both in regard to law and fact.
The act is very comprehensive in its terms, and in the second section provides, that “no judgment upon any indictment for any felony or misdemeanor, or upon any presentment, whether after verdict, by confession, or otherwise, shall be stayed or reversed for,” (sundry matters then enumerated,) “nor for any matter or cause which might, have been a subject of demurrer to the indictment, inquisition or presentment, as the case may be.”
Now, if finding the parties guilty, in the manner shown by the record, can be considered as a verdict, the judgment rendered thereon is within the act of 1852. But, if such finding is not a- verdict, and the judgment is neither “after verdict or by confession,” surely it must iben be such a judgment as was designed to be provided for by the words, “or otherwise.” And believing the indictment should have been held bad on demurrer, we think the case comes within the act under consideration; consequently the judgment cannot be reversed.
Although the act of 1852, in this instance, may prevent the reversal of a judgment not strictly legal, nevertheless, as the judge below found the parties guilty of burning the building, it is but just to presume the evidence authorised such finding, and, if so, the offenders will only meet that punishment which [440]*440the Legislature designed should be the consequence of such a crime.
As the act of 1852 prohibits a reversal of the judgment, because the parties might have prevented the judgment by demurrer on account of defects in the indictment, the writ of error must be quashed.
Writ of error quashed.