
    MELVIN D. WOODFORD, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
    
      Indictment fot' mmi—when turning of several buildings may he alleged in sarnie count — duplicity—Evidence.
    
    Where a house was set on fire by the plaintiff in error, and by the fire thus started by him, thirty-five houses were destroyed, held, that he was properly indicted for one offense, and that, if the destruction of every house amounted to the same degree of arson, the indictment need contain but one count, charging the burning of the thirty-five houses.
    The counsel for the plaintiff in error insisted that the indictment was void for duplicity, upon the ground that it did not state that there was a human being in each house, but in one only, and therefore joined in one count the offenses of arson in the first, and in the third degree. Upon the trial the people abandoned all claim to convict, except as to one specific house, and the judge charged the jury, that they must find the prisoner guilty of setting-fire to that house or acquit him. Held, that the error in the indictment, if any, was cured by the waiver on the part of the people and the charge of the judge.
    The indictment charged the prisoner with setting fire to the dwelling-houses of certain persons, naming them, and of divers other persons to the jurors unknown, “ there being then and there within the said dwelling-houses some human being.” Held, that the indictment sufficiently alleged the presence of a human being in each house.
    
      A few hours before the commencement of the fire in question, a hay barn, situated in the same village, was burned. Upon the trial evidence was received, against the objection and exception of the prisoner, showing that he was seen in the vicinity of the barn shortly before and after it was burned. Held, that the evidence was properly admitted.
    The occupant of the house, for the burning of which the plaintiff in error was convicted, was aroused by the alarm before the fire had reached her house; instead of leaving at once she remained a few moments to collect her things, when the fire caught her house. Held, that the prisoner was properly convicted of arson in the first degree.
    Weit of error to the Court of Oyer and Terminer of Madison county, to review the conviction of the plaintiff in error of arson in the first degree. The plaintiff in error was tried and convicted of arson in the first degree, in setting fire to certain dwelling-houses in the village of Canastota. The first count of the indictment charged that the plaintiff in error and one Stone, “ on the twenty-seventh day of October, in the year of our Lord one thousand eight hundred and seventy-three," at the town of Lenox in the county of Madison, aforesaid, with force and arms, in the night time of the said day, certain dwelling-houses, the property of the'several persons hereinafter named and set forth, to wit: One belonging to Eliza A. Perry, two belonging to Elizabeth Young, one belonging to Mary H. Parker, one belonging to John H. Johnson, one belonging to Matthew Worth, one belonging to Alvin Wells, one belonging to a Mrs. Fay, one belonging to Friend A. Andrews, one belonging to Mrs. John Montross, one belonging to Mrs. Delano, one belonging to David H. Rasbach, and others belonging to divers persons to the jurors unknown, in all about thirty-five dwelling-houses then and there situate (there being then and there within the said dwelling-houses some human being), feloniously, willfully and maliciously did set fire to, against the form of the statute in such case made and provided, and against the peace of the people of the State of Mew York and their dignity.
    The second count charged, “ That William A. Stone and Melvin D. Woodford, afterwards, to wit: on the day and in the year aforesaid, at the town of Lenox, in the county of Madison aforesaid, with force and arms, .in the night time of the said day, certain dwelling-houses of divers persons and individuals and people to the jury unknown, and particularly a certain dwelling-house of Eliza A. Perry, one dwelling-house belong to Mary H. Parker, one dwelling-house of David H. Rasbach, and one dwelling-house of Carrie Bond, one dwelling-house known as the Beecher block in Canastota, H. Y., then and there situate, there being then and there within the said dwelling-houses some human being, feloniously, willfully and maliciously did burn, against the form of the statute in such case made and provided, and against the peace of the people of the State of Hew York and their dignity.”
    
      Wm. James, for the plaintiff in error.
    
      G. A. Forbes, district attorney, for the defendants in error.
   Landon, J.:

The prisoner committed but one act, and its consequences were the destruction of thirty-five dwelling-houses. We think it was proper to indict him as for one offense, and, provided the destruction of every house amounted to, the same degree of arson, the indictment need contain but one count. He should be held to have intended the natural and probable consequences of his wicked act. The wrong done, was done by him, and it was done with a malicious intent. That intent may not have originally embraced all the mischief he produced, and it may have embraced more. The malicious intent being granted, its extent must be gathered from the result, and, in the absence of evidehce to the contrary, be held commensurate with it. Ho man can shelter himself from punishment upon the ground that the mischief he did was wider than he intended, If the description of his crime embraced thirty-five houses, it was because he destroyed so many. If the multitude confused him, he caused the multitude. The people were not obliged to rest with one, since the prisoner had not. The objection to the indictment for duplicity, in charging the burning of thirty-five houses, was therefore not well taken. For the same reason, the people had the right to give evidence as to the burning of all of them. Regarding the entire fire as one transaction, the burning, condition, situation and occupancy of the several houses, were simply matters of detail. When, at the close of the evidence, the people elected to proceed as to the burning of one house only, waiving all right to convict as to any of the others, they threw away thirty-four chances of conviction, which, assuming the indictment to be correctly framed as to every house, they had the right to hold and urge against the prisoner. It is difficult to see how the prisoner was harmed by it. His counsel did not except. What he assented to then, he cannot urge as error now.

The prisoner’s counsel further urged upon motion to quash the indictment, and in arrest of judgment after conviction, that the indictment was void for duplicity, upon the alleged ground that it did not state that there was some human being in each one of the dwelling-houses, but in one only, and therefore charged in each count the separate offenses of arson in the first, and in the third degree. If the indictment does allege that there was a human being in some of the houses, and does not allege it as to all, then the indictment is obnoxious to the objection. The first degree of arson requires the presence of some human being in the dwelling-house at the time the prisoner sets fire to or burns it; the third degree does not. These two degrees of arson, being two distinct statutory crimes of different grades of punishment, cannot be united in one count. The reason of the rule is, that if the jury are permitted to find a general verdict of guilty upon such a count, the verdict condemns the prisoner for the higher offense charged in it, when the fact might be that the jury only thought him guilty of the lesser crime ; and also because some might find him guilty of one, and some of the other offense, and all agree upon neither, in which case he should not be convicted at all. We state the reason of the rule, to show that the rule itself, is without application in the present case. The people withdrew all claim to convict except with regard to the single house of Mary H. Parker. The judge distinctly told the jury that they must find the prisoner guilty of setting fire to that house, or acquit him; with this waiver by the people, and this charge by the court, it was of no moment to the prisoner whether the indictment improperly joined other offenses with the one upon which only he was to be judged. If the allegations as to the others were erroneous, the errors were removed by the withdrawal of the charges.

The question was distinctly raised by the prisoner’s counsel in his requests to charge and exceptions to refusals to charge, whether the indictment charges the prisoner with arson in the first degree in setting fire to the house of Mary H. Parker. If it does not, then the prisoner has been convicted of a crime with which he was not charged, and the conviction cannot be sustained. The point of this objection is, that the indictment does not specifically charge that at the time the prisoner set fire to her house, there was some human being in it. Arson in the first degree, as described by the statute, consists of “ willfully setting fire to, or burning, in the night time, a dwelling-house in which there shall be, at the time, some human being.” The indictment in the first count charges the pris-oner with setting fire to the dwelling-house of Mary H. Parker, and the dwelling-house of several others, naming some, and describing others as “ divers persons to the jurors unknown,” and then uses these words : there being then and there within the said dwelling-houses some human being.” The second count used the same words to charge the presence of a human being at the time the houses were burned. Is it a fair construction of these words to say, that they do not charge the presence of a human being in' each of the dwelling-houses, but only charge the presence of one human being in some one of the multitude ? The prisoner had the right to know, at and before the trial, whether the indictment charged the fact to be, that there was a human being in the dwelling-house of Mary H. Parker. If it did, he had to meet a charge placing his liberty for 'life in peril; if it did not, then only for a short term of years. The indictment uses the precise words of the statute, and while it may be justly charged that the language employed is not explicit, we are sure that no one can read the indictment, without being convinced that it was the intent of the pleader to charge the presence of a human being in each of the dwelling-houses specified therein. We think it a fair construction of the words employed, to hold that they do so charge. This objection therefore fails.

Evidence was given by the people, under objection, showing the conduct and whereabouts of the prisoner for several hours preceding the fire. A hay barn was burned in the same village about three hours previous to the fire in question, and the prisoner was shown to have been seen in its vicinity shortly before and after the fire broke out. Had there been no burning of the hay barn, it would not be doubted that evidence might properly be given, showing the whereabouts and conduct of the prisoner shortly before the fire in question, especially if it bore upon his opportunity or guilty intent to do the act. This evidence seems to have been given with this view, and the judge in his charge cautioned the jury to give to it no other effect. We think the criticism of the prisoner’s counsel that proof of one offense was given in support of another is not warranted.

The prisoner’s counsel requested the court to charge that if the fire did not reach the house of Mary H. Parker until after she was aroused, and she had time to escape before the fire reached her house, and she neglected to do it, it is not arson in the first degree. Mrs. Parker testified that she was aroused from her sleep by the alarm; that the fire had not then reached her house; that she threw on her wrapper, and, instead of instantly leaving, remained about five minutes to pick up some of her things, when the fire caught her house. In view of these facts the judge properly refused the request. It would be requiring too much, to ask the inmates of an exposed house, to abandon -their shelter and property at the earliest moment, out of any sentimental regard for the fate of the incendiary. Arson is an offense against property. It is aggravated when, in addition to the destruction of property, human life is thereby in danger of destruction. Because a party may or does escape with his life, does not prove that it was not in peril. The statute has made the fact, that some human being is in the house at the time it is set fire to, the test of the peril, and draws no distinctions as to its imminency. Several other objections were taken which we think were properly disposed of by the learned justice upon the trial, and it is not necessary to discuss them. The conviction should be affirmed.

Present — Bookes, P. J., Landon and Countryman, JJ.

Conviction and judgment affirmed. 
      
       Wharton Cr. Law, § 891.
     
      
      
         Roscoe Cr. Evidence, 271, 272.
     
      
      The People v. Wright, 9 Wend., 193; The People v. Reed, 1 Park., 481; Dawson v. The People, 25 N. Y., 399.
     
      
       People v. Butler, 16 John., 204; People v. Orcutt, 1 Park., 252.
     