
    Simeon Allen v. The State of Ohio.
    1. The procuring another to burn a warehouse, the property of a third person, by a person in possession of the warehouse under a lease, is an indictable offense within the provisions of sections 12 and 36, of the crimes act of March 1, 1835. Curwen Stat. 181.
    2. A house, used exclusively for storing goods, is a warehouse within the meaning of said section 12, although the building had been constructed and formerly used for another purpose, and although the goods were owned by the tenant.
    3., Where an indictment against two, charged one with burning and the other with procuring the burning of the building, it is not error for the court to award separate trials, on motion of the prosecuting attorney.
    4. After a severance and continuance for trial as to the principal, he becomes a competent witness on the trial of the person charged with procuring the burning. Noland v. The State, 19 Ohio, 131.
    5. While it is the duty of the court, in their discretion, to advise the jury not to convict of felony upon the testimony of an accomplice alone, without corroboration, there is no rule of law preventing a jury from convicting upon the uncorroborated testimony of an accomplice.
    6. It is error for the court to refuse to permit the witness, after his testimony showing his complicity with the defendant in the commission of the crime, to'be asked, on cross-examination, whether he did not expect that his own discharge from a further prosecution depended upon the fact of the conviction of the'defendant.
    *This is a writ of error to the c.ourt of common pleas of Butler county.
    At the June term, 1859, of said court, William C. Herron was indicted for arson in burning a warehouse, and Simeon Allen was indicted for procuring him to do so. The two were jointly indicted At the same term, the court, on motion of the prosecuting attorney, ordered the two to be tried separately, and continued the case as to Herron on his and the prosecuting attorney's motion. To this severance and continuance Allen excepted.
    The indictment contained three counts, but the prosecuting attorney entered a nolle prosequi, as to Allen, upon the first and second counts, and arraigne"d him upon the third. The third count reads as follows: “And the grand jurors aforesaid, upon their oath aforesaid, do further present and find that William C. Herron, late of the county of Butler aforesaid, on the twenty-fifth day of May, in the year of our Lord one thousand eight hundred and fifty-seven, at the county aforesaid, did feloniously, willfully, and maliciously, and with force and arms, sot fire to and did then and there, by such firing, as aforesaid, feloniously, willfully, and maliciously, and with force and arms, burn a certain warehouse of the value of five hundred dollars, there situate, the property of the Four-Mile Yalley Bailroad Company, a body corporate, duly incorporated by the laws of the State of Ohio, said warehouse then and there being in the possession and occupancy of one Simeon Allen, under a temporary lease of said warehouse, from said Four-Mile Yalley Bailroad Company to said Simeon Allen, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio. And the grand jurors' aforesaid, upon their oath aforesaid, do further present and find that said Simeon Allen, late of said county, before the said crime of arson was committed, in form aforesaid, by said William C. Herron, to wit, on the twenty-fourth *day of May, in the year of our Lord one thousand eight hundred and fifty-seven, at the county aforesaid, did feloniously, willfully, and maliciously incite, move, procure, counsel, hire, and command the said William C. Herron, the said crime or arson, in manner and form aforesaid, to do and commit, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”
    Upon being arraigned upon this count of the indictment, Allen demurred thereto, but the court overruled the demurrer, and required him further to answer. Thereupon he moved the court to quash said count, upon the ground that it admits that he was in -possession, as tenant, of the building therein charged to have been burned at the time of the alleged burning. The court overruled -this motion also, and required him further to answer said third count, and he excepted. Thereupon he entered a plea of not guilty, and went to trial. The state, to maintain the issue on her part, called the said William C. Herron as a witness. Allen objected to Herron being examined as a witness, because they were jointly in■dicted, insisting that therefore Herron was incompetent. The court overruled this Objection, and allowed Herron to be sworn and ex.amined as a witness on behalf of the state.
    Herron having testified, in chief, to facts tending to prove that Allen had procured him to set fire to the warehouse, on cross-ex•amination Allen’s counsel asked him, among other questions, this -one: “If Allen is convicted, do you expect to be prosecuted?” The counsel for the state objected to .this question, and the court ■sustained the objection, and Allen excepted. It appears, however, that the court did permit the witness Herron to be interrogated as to any understanding or agreement, or any conversation with the prosecuting attorney, or any other person connected with the prose■cution, in reference to his (Herron’s) not being prosecuted.
    *The testimony on both sides being closed, counsel proceeded to argue the cause to the jury. Allen’s counsel, in argument "to the jury, claimed that there was no testimony before the jury, but that of said Herron, which tended to show the guilt of Allen, and asked the court to charge the jury that they could not convict him upon the testimony of Herron, an admitted accomplice, unless his testimony was corroborated by other testimony upon some matters material to the issue. The court refused to give this charge to the jury; but, upon that subject, charged the jury thus : “ I can’t say that you (the jury) can’t find a verdict upon his (Herron’s) testimony alone, but it is the safer rule not to find the defendant guilty upon the testimony of Herron alone, without corroboration, which corroboration should be in some matter material to the issue.”
    In reference to the building alleged to have been burned, the evidence tended to show that the building was only used by Allen as a place of deposit for his own goods. Allen’s counsel insisted, in argument to the jury, that the proof showed that it was not, in fact, a warehouse, and that it was not known or recognized as a warehouse in the neighborhood. Counsel for Allen asked the court to charge the jury: 1. That by the term warehouse, as used in the statute, was not meant merely “ a storehouse” in which, a person deposited his own-goods, but that by it was meant a house in which a bailee received, in the course of trade, the goods of others. 2. And (in the event the court should refuse to charge this first proposition) that to constitute a warehouse, within the moaning of the statute, the building must have been, at the time, and in the vicinity in which it was situated, regarded and commonly known by that name.” But the-court refused to give either charge -to the jury, and did charge the jury that a warehouse, as used in the statute defining the crime of arson, was, as defined in Webster’s Dictionary, “a storehouse for goods,” and that the jury might find *tho building to be-a “warehouse” if Allen’s goods alone were stored therein, and if it was used alone for such purpose, and although it was not known and recognized where it was situated as a “warehousethat a building might have been erected and acquired a name in connection with some trade or business, and community might still know it by the name thus acquired, yet if afterward the use of the building-was changed, the use to which it was being actually put at the time-of the offense, would determine the character of the building.
    Allen’s counsel also asked the court to charge the jury that if, at. the time of the alleged burning, he was in the actual and exclusive possession of said building, as lessee of said Four-Mile Yalloy Railroad Company, the jury could not .convict him under the indictment. The court refused to give this charge.
    To all which charges as given, and refusals to charge as requested,. Allen’s counsel excepted at the time.
    The jury having returned a verdict of guilty against him, he filed a motion for a new trial upon the following grounds : 1. The verdict is against the law ; 2. The verdict-is against the evidence; 3. The court erred in allowing Herron to be separated in the trial, and in permitting him to be a witness; 4. The court erred in charging the jury that the definition of a warohousé was, as defined in Webster’s Dictionary, a storehouse for goods, and in saying to the jury that they might consider the building that was burned a warehouse, if Allen’s goods alone were stored therein by him, and though used for that purpose alone, although the building was not known and recognized where it was situated, as a warehouse ; 5. The court erred in defining what a warehouse was to a jury, that being a question, of fact for the jury to determine; C. The court erred in charging the jury as it did in relation to their right to convict- Allen upon the testimony of Herron, the admitted accomplice ; 7. The indictment does not charge any offense against Allen.
    *Other grounds .were taken for a new trial, but as the questions thereby presented are not determined here on error, they are not stated, nor are those parts of the record upon which they arise. ■
    Allen’s motion for a new trial was overruled, and he excepted.
    Thereupon he filed a motion in arrest of judgment for the following reasons : 1. The indictment does not charge any offense against, him; 2. The indictment charges that the building burned was in the actual possession of said Allen as lessee, at the time it was-burned; 3. The indictment alleges the building burned to be the-property of the Four-Mile Yalley Railroad Company, a body politic, and not the property of any private person.
    The court overruled this motion in arrest of judgment, and Allen excepted.
    Thereupon the court entered judgment upon the verdict, sentencing the prisoner to imprisonment in the penitentiary.
    To reverse the judgment this writ of error was brought, and on behalf of the plaintiff in error it is claimed that the court below erred :
    1. In overruling his demurrer to the third count of the indictment.
    •2. In overruling his motion to quash the same.
    3. In sustaining the'motion of the prosecuting attorney to award a trial of said 'Allen separate from and before a trial of said Herron,, and in causing him to be so tried.
    4. In overruling his said motion in arrest of judgment.
    5. In overruling his exception to the competency of said Herron, as a witness, and permitting the latter to testify.
    - 6. In overruling his question to Herron: “If Allen is convicted, do you expect to bo prosecuted?”
    7. In refusing to instruct 4he jury as requested bysaid *Allen, and in the instructions given, and to which he excepted.
    8. In overruling- his motion for a new trial.
    9. In passing sentence upon him, when by law he was entitled to judgment in his favor.
    
      Thomas Millildn, Mobert Christy, and A. G. Thurman, for plaintiff-in error.
    
      A. G. Thurman argued:
    
      I. The third count, on which Allen was convicted, makes no case •of the crime for which he was convicted.
    It appears by the count that Allen was the lessee and in the actual ■possession and occupancy of the warehouse.
    Now, I maintain that nothing is more firmly settled by authority than that a tenant, who burns the building of which he is in possession, is not guilty of arson either at common law or under a •statute like ours.
    Both at common law and under our statute, it is essential that the building set fire to by the accused, was the property of another person. The language of our act is, “ the property of any other person.”
    
    The question then is, whose property is a building held under lease by a tenant and in his actual possession, within the meaning •of this act? Is it the property of the tenant, or of the landlord, or of some other person than either of them?
    This question is answered by an unbroken chain of decisions, English and American, in all of which it is held that it is the prop•erty of the tenant, and that consequently the burning of it by him is not the' burning of the property of “any other person,” and, ■therefore, is not arson.
    This strikes one, at first, as a strange ruling; but when we reflect upon it, our wonder ceases, and we find that it rests upon a solid ■foundation.
    The reason given for the decisions is, that the object of *the law is to protect the tenant in possession, whether he is tenant in fee, for years or at will, from injury. It is to prevent others from destroying the property of which he is in possession, to his injury. But it is not to protect him against his own acts. If a man see fit to burn his own house, the law does not forbid him, provided he takes care not to set fire to some other house thereby.
    ' And it is the tenant and not the landlord, who, in general needs the protection. For if, as is very common, the tenant covenant to repair, without excepting the casualty of fire, he will be bound to rebuild, even though the house be burned by lightning, and a fortiori, if it be burned by an incendiary. Walton v. Waterhouse, 2 Saund. 420, 422a, note 2; Phillips v. Stevens, 16 Mass. 237.
    And even where there is no covenant by the lessee to repair, yet the loss of the building by fire will not exonerate him from the payment of rent, unless it be so stipulated in tbe léase. 2 Saund. supra; Fowler v. Bott, 6 Mass. 63.
    And the landlord is not bound to rebuild, unless be bas covenanted to do so. He may, without rebuilding, exact tbe rent. 2 Saund, 422b; Pindar v. Ainsley, 1 Term, 312; Belfour v. Weston, 6 Term, 488; 4 Kent’s Com. 110.
    It is tbe tenant, therefore, who, in general, needs protection from,injury by incendiaries. But be needs no protection against bis own-act, and hence tbe law of arson does not apply to him.
    Again. If tbe tenant in possession is not the owner of tbe property, within tbe meaning of tbe act, who is ? There may be various - estates in tbe same property, all existing at tbe same time, to wit, estates at will, for years, for life, in fee—estates in possession, remainder, reversion. Very frequently out of an estate for years, ex gra., for ninety-nine years, divers estates for smaller terms are created by sub-letting. Now, if tbe tenant in possession is not to be deemed tbe owner, which of tbe various tenants for years, for life, in fee, remaindermen or reversioners, is *fco be deemed tbe owner ? Tbe indictment must aver that tbe building was tbe ■ property of some other person than tbe incendiary, and must name • such other person. Which of tbe various persons, interested as-above, shall it name ?
    But it is unnecessary to argue tbe question, for it is res adjudicata. See Holmes case, Cro. Car. 376; King v. Spalding, 1 Leach’s Cro. Law, 258; King v. Breeme, Id. 261; King v. Pedley, Id. 277; People v. Gates, 15 Wend. 159; McNeal v. Woods, 3 Blackf. 485; Ritchey v. The State, 7 Id. 168; State v. Roe, 12 Vt. 112; Sullivan v. State, 5 Stew. & Port. 175; 3 Archbold, 493, 12; 1 Hale’s P. C. 568; East’s P. C. 1022; 3 Chit. Or. L. 1121, margin; 2 Russell on. Crimes, 550, top, 551, margin; 3 Arcbbold, 493-499. In England, the law has been altered by 43 George III., c. 58; 3 Chit. Cr. Law,. 1124, top.
    Tbe general assembly bas just passed an act to embrace cases • like this, thus showing tbe legislative understanding that tbe.crimes act does not embrace it.
    As Allen would not have been guilty bad be burned tbe bouse • himself, be can not be guilty of having procured it to be burned. Rex. v. Hains, Foster’s Cro. Law, 113.
    II. Tbe building burned was not a “ warehouse,” as charged in the.,indictment, within tbe meaning of that word as used in the statute.
    
      Webster defines a warehouse to be, “A storehouse for goods,” and ■the common pleas followed him.
    Now, in its largest sense, this is what a “warehouse” imports; 'but it is not used in this large sense in the statute. This is evident from the fact that the statute enumerates divers buildings, ex gra., • smoke-house, barn, store-house, malt-house, that would come under the denomination of warehouse, according to Webster’s definition.
    The specification of these various buildings, and, also of uware.house,” in the statute, shows that different structures were intended. The common pleas treated “warehouse” *and “store-house” as synonymous. But both words are in the statute, and therefore, upon well-settled rules of construction, they are intended to mean different things.
    The truth is, the building in question did not come under any of ■the specifications of the act. It fell within the general clause, “or .any buildings, the property of any other person, of the value of fifty dollars, or containing property of the value of fifty dollars.”
    It is arson to burn any one of the enumerated buildings, however .small its value, and whether it contain property or not.
    But had the building in question been of less value than fifty dollars, and contained no property, or property of less value than fifty ■dollars, it would not have been arson in any one to burn it.
    As to what is a “warehouse,” see 3 Chit. Cr. Law, 941, top.
    III. Herron was not a competent witness against Allen, the in-dietment standing against both. See 1 Greenl. Ev., sec. 363, and cases there cited.
    Nolan v. The State, 19 Ohio, 131, is a direct authority against me ■on this point; but I respectfully ask the court to review that decision.
    Under the most favorable circumstances for truth, the testimony of an accomplice is sufficiently exceptionable and dangerous. But to allow him to testily while the indictment hangs over him, is to :add tenfold to the danger. Every villain in that category testifies with the expectation of being rewarded by a discharge, if by his testimony he convict the accused. This incentive to perjury ought not to exist; certainly not where the witness is confessedly a criminal himself. It should be removed, by his conviction or discharge, before he is Called on to testify. Though convicted, he can be a -witness, if not sentenced; arid if discharged, he can be a witness: •and he should be convicted or discharged before being called to testify.
    *IV. It was error to overrule the question put to Herron, by the prisoner’s counsel, whether he did not expect to be discharged.
    
    I take it that it is always competent to show that a witness testifies under a belief of interest, though, in fact, no such interest exists. Such belief, in the absence of interest, does not disqualify; but it is proper to be considered in weighing the witness’ testimony, and giving to it its proper value, and no more.
    Thus, it is every day’s practice to ask a witness if he is a relative, tenant, servant, or in anywise a dependent of the party calling him.
    And there are numerous authorities that a witness, believing himself interested, is incompetent, though not interested. 1 Greenleafs Ev., sec. 387, and notes.
    The weight of authority is otherwise, the true reason of which is, that a party shall not be deprived of the testimony of a disinterested witness because the witness erroneously thinks himself interested. But I don’t believe a case can be found in which proof ■of the witness’ belief has been rejected, except the present case.
    That such proof is admissible, and from the mouth of the witness, is evidently implied in G-reenleaf, supra.
    
    
      Y. It was error to charge the jury that they might convict on the uncorroborated testimony of Herron. See Noland v. The State, supra.
    
    
      James Glark, for the state:
    I. Is a party guilty, under the Ohio statute, of procuring the crime •of arson to be committed, who hires another to burn one of the buildings named in the statute, the building, at the time it is so burnt, being in the possession of the party who procures the act to be committed, under a temporary lease from the general owner?
    1. By the common law, arson was defined to be “the malicious .and voluntary burning of the house of another; *and dwelling-houses alone were held to be the subjects of it. Arson and burglary were classed together, as crimes affecting the habitations of individuals. Both were offenses against possessory rights. Hence, by the •common law, it was not arson for a tenant for years to burn a house in his own occupancy as such tenant. 1 Hale’s P. C. 566; 4 Bla. Com. 220; Holmes’ case, Cro. Car. 376; Rex v. Spalding, 1 Leach, 238; Rex v. Breeme, Ib. 261; Rex v. Pedley, Ib. 277; People v. Gates, 15 Wend. 159; Commonwealth v. Wade, 17 Pick. 395; People v. Van Blarcum, 2 Johns. 105; McNeal v. Woods, 3 Blackf. 485; Ritchey v. The State, 7 Blackf. 168.
    2. The 12th section of the Ohio act for the punishment of crimes, declares, “that if any person shall willfully and maliciously burn,, or cause to be burned, any dwelling-house, kitchen, smoke-house,, shop, barn, stable, store-house, warehouse, stilling-house, mill, or pottery, the property of any other person, . . . every person so-offending shall be deemed guilty of arson.” This statute evidently designs more than simply to afford protection to persons in the actual occupancy of buildings of the several classes named in it. Its-purpose is to protect property, whether qualified or absolute; and as by the common law it was felony for a landlord to burn a. dwelling which he had let to a tenant, on the ground that arson, was an offense against the possession, so, by our statute, it is arson for the tenant to burn the building demised to him on the grouncL that he thereby destroys the property of his landlord. Arson, under the statute, consisting in the burning of certain specified buildings, “theproperty of any other person,” and landlord and tenant having each an ownership in the leased premises, the one general, the other qualified, either may be guilty of arson by burning the demised property, for, by so doing, he destroys the property of the other. Swan’s Stat. 270, sec. 12; 2 Russell on Crimes, 551; Foster’s Crown Law, 115.
    *3. The doctrine in Holmes’ case (in which it was first, decided that a tenant rightfully in possession could not be guilty of arson in burning the demised property) was afterward much questioned by the judges. Justice Foster and Lord Mansfield, in. subsequent cases, both exjMessed doubts of the correctness of the-ruling, and intimated that the building burnt might well have been described as the property of the general owner. Had the-common-law definition of arson been the same as that contained in the Ohio statute, there can be no doubt that the English courts-would have followed the suggestion of these learned judges. Rex v. Harris, Foster’s Crown Law, 113; Rex v. Breeme, 1 Leach, 261; Opinion of Croke, J., in Holmes’case; Pedley’s Case, 1 Leach, 281.
    II. Did the court below err in instructing the jury that the term, “warehouse” means “a store-house for goods?” Webster’s Die.;, State v. Sandy, 3 Iredell, 573; Rex v. Godfrey, 1 Leach, 322: 3 Chit. Cr. Law, 941.
    III. Is it error for the court to instruct the jury that they may convict on the unsupported testimony of an accomplice?
    I claim it is no error for the court so to instruct, especially when the jury are cautioned that it is the safer rule to require that the accomplice be corroborated in some matter material to the issue. 1 Greenl. on Ev., sec. 380 ; 1 Denio, 87.
   'Sutlirr, J.

The point principally relied upon by counsel of plaintiff in error, as showing error in overruling his demurrer, is, that it is averred, in the third count of the indictment, that the accused was in the possession and occupancy of said warehouse. It is insisted that the procuring by Allen to burn the house, while so in his possession, was not an offense within the meaning of the statute.

In the “act providing for the punishment of crimes,” passed March 7, 1835 (Curwen’s Stat. 181), it is provided, as follows:

*Sec. 12. “ That if any person shall willfully and maliciously burn, or cause to be burned, any dwelling-house, kitchen, smoke-house, shop, barn, stable, store-house, warehouse, malt-house, stilling-house, mill, or pottery, the property of any other person ; or any other building, the property of any other person, of the value of fifty dollars, or containing property to the value of fifty dollars; or any church, meeting-house, court-house, work-house, school-house, jail, or other building; or any ship, boat, or other water-craft, of the value of fifty dollars; or any bridge, of the value of fifty dollars, within this state; every person so offending shall be deemed guilty of arson, and, upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, not more than twenty years, nor less than one year.”

It is also provided as follows, by section 36: “ That if any person shall aid, abet, or procure any other person to commit any of the offenses by this act made criminal, every person so offending shall, upon conviction thereof, be imprisoned in the penitentiary, and kept at hard labor, for any time between the respective periods for which the principal offender could be imprisoned for the principal offense; or, if such principal offender would, on conviction, bo punishable with death, or be imprisoned for life, then such aider, abettor, or procurer shall be imprisoned for life, or be punished with death, as the occasion may require.”

The crime of arson, at common law, consisted in the malicious and willful burning, by a person, of the house or out-house of another. And whether the house wore a dwelling-house, or an outhouse, though not contiguous to the dwelling-house, nor under the same roof, as a barn or stable, its burning might, at common law, constitute arson. And the burning of a single barn in the field, if filled with hay or grain, though not within the curtilage of a dwelling-house, was accounted a felony! But it was *held that a burning by a tenant in possession was not a burning of the house of another, within the definition of the crime of arson.

. In Holmes’ case, at Michaelmas term, 1634, this question came before the king’s bench, and was fully considered. William Holmes had been indicted in London “ for that he in April, 7 Car. I, being possessed of an house in London, in Throgmorton street, in such a ward, for sis years, remainder to John S., etc., in fee: In vi et armis, 3 April, 7 Car. I, the said house f¿Ionice voluntarle, et malitiose igne combussit eaintentione ad eandem domum mansionale,” etc. Upon his being arraigned at Newgate he was found guilty, but before judgment the indictment was removed by certiorari into the king’s ¡bench. It was there argued that it was not felony. And it was held by Richardson, Chief Justice, and by Jones and Berkley, Justices, that it was not felony to burn a house whereof he '-is in possession, by virtue of a lease for years; for, they said, that ¡burning of houses is not felony, unless they are aedes alienas; and ■they refer to Britton, Bracton, and the Book Assize, as saying that ^burning of houses generally is felony, are intended “ de cedibus ,.aliensis, et non propriis.” And Berkley and Jones, Justices, held ■■“that it can not be said to be vi et armis when it (the house) is in !his own possession.” Croke’s Charles, 376.

The same holding in this respect was had under the statute 9th >-of 'G-eorge I., in chapter 22, making it felony “ to sot fire to any 'house, barn, or out-house, or to any home, cock-mow, or stack of •corn, straw, hay, or wood.” The King v. Spaulding, 1 Leach, 258. 'The common-law construction of the offense, that the thing burned must be in the possession of another, was applied to the offense deiclared by this statute. But for a tenant to burn a building bolongnng to another, of which he was in possession, was a high misdemeanor at common law, and punished by fine and pillory, and surety required for future good behavior. But we have never had any common-law offenses in this *state. Our statute against the burning of buildings is not confined to the common-law offense of arson, or felonious burning. It seems to comprehend that kind of burning which, at common law, consti- - tuted merely a high misdemeanor, as well as those which were arson, or felonies at common law. The description of the offenses as well as the grade of punishment, extending as it does from one to twenty years, seems to indicate this to have been the object of the statute; and that our statute was meant to embrace the case of a tenant willfully and maliciously burning buildings, the property of another, of which he was the tenant, or in possession.

There is still another answer to this objection. The charge and conviction in this case were not that the tenant burnt the building; but that he procured another to bum it. ■ Suppose the principal, Herron, to have been put upon his trial and convicted for burning the building, it certainly could not be pretended that the offense as against him was not well charged, and within the statute, under the English construction. As to him, the building was cedes aliena. If, then, after the conviction and sentence of the principal for the' arson, Allen had been put on trial for having procured Herron to commit the arson, for which so convicted, it could not be objected that the crime of arson had not in fact been committed by Allen; nor could it be objected that Allen’s relation to the property had prevented his procuring Herron to burn the building. It follows, therefore, that even if the objection that Allen’s being in possession would prevent his being charged as principal for arson in burning the building, the objection could not be urged against his being charged as a procurer of the act.

But we think, upon sound reason and undoubted principles of law, derived from analogies as well as from the language of the ’ statute, it is sufficient to aver the property to be that of the general owner, as well as to aver it to” be the property of the special owner or tenant'. And there *being no legal or reasonable objection to so comprehensive a rule, we think that considerations of public convenience and a furtherance of the ends of justice recommend its adoption; and especially so, inasmuch as no contrary rule has ever, to our knowledge, been adopted in the courts of this state.

We perceive no error in allowing the. motion of the prosecuting attorney to award a separate trial of Allen. He was charged with a distinct substantive offense, and it is difficult to perceive any objection to the order that could legally be made by the defendant. Herron acquiesced, and.the motion maybe regarded as made at'his instance.

Again: it can not be doubted that a nolle prosequi might have been entered by the state against either of the accused in this case, as it always has been the practice to do, under the general rule, where two or more are indicted for distinct substantive offenses; and that the piarty thus discharged might be inxproved as a witness for or against the others upon trial. And in the case at bar, the severance having been made, and the case continued as to Herron, he became a legal witness either for or against Allen on his trial, the same as he would have been had separate indictments been returned against each.

It is said to be a settled rule of evidence, that a particeps criminis, notwithstanding the turpitude of his conduct, is not on that account an incompetent witness, so long as he remains not convicted and sentenced for an infamous crime; and it makes no difference as to the admissibility of an accomplice, whether he is indicted or not, if he has not been put on his trial at the same time with his companions in crime. 1 Greenleaf Ev. 379; Jones v. State of Georgia, 1 Kelly, 610; Noland v. The State, 19 Ohio, 131.

We do not regard the charge of the court in relation to the name of the building as exceptionable. It was quite immaterial to the issue what had been the name or character *of the building. The use of a building is not unfrequently changed. A building once a warehouse may have become a tannery, a shop, or a mill; and if burned after its use and character has been thus changed, it must be described by its true character when burned, without respect to its name or character when built. It is true, the word warehouse is sometimes used in a very strict sense, as a somewhat technical term in commercial language. And it is not unfrequently in law confined to this restrictive sense. Goods to be delivered for shipment at some warehouse at a seaport town, would imply a particular kind of warehouse, familiarly and well understood in connection with the commercial business for which such houses were used. But the word warehouse, in its general acceptation, and as used in this statute, is one of much more comprehensive import, and embracing, we have no doubt, buildings used for such purposes ns expressed by the court, in the instructions given to the jury upon the subject. Nor could it make any difference whether the goods stored in such house belonged to the occupant, or were merely stored by him as bailee.

The first, second, and fourth causes assigned, seem to rest substantially upon the same ground, and have already been considered.

It is also insisted that the court erred in not giving the instruction requested .to the jury in relation to Herron’s testimony. But we perceive no error in the refusal of the court to give the instruction proposed by counsel, nor in the instruction actually given to the jury upon that subject.

The degree of credit which ought to be given to the testimony of an accomplice, is a matter exclusively for the consideration of the jury. In most cases it is highly important that the jury should require his testimony to be corroborated by other evidence or circumstances, rather than to convict upon his unsupported testimony. Indeed, it can very rarely be expected that the testimony of an accomplice, ^admitting his own depravity and turpitude in the matter, would be sufficient to overcome all reasonable doubts and presumptions in favor of the accused. But it is said there is no rule of law requiring of the jury a refusal to convict upon the uncorroborated testimony of an accomplice. This doctrine is distinctly laid down by Greenleaf, in his Treatise on Evidence, vol. 1, sec. 380; but he adds that “ judges, in their discretion, will advise a jury not to convict of felony, upon the testimony of an accomplice alone, and without corroboration. And it is now so generally the practice to give them such advice, that its omission would be regarded as an omission of duty on the part of the judge.” The court gave this usual caution to the jury; and the evidence sot forth in the record, does not show that that advice of the court was disregarded.

The case of The People v. Castello, 1 Donio, 83, is a case in which the authorities upon this point are well collected and ably considered ; and that case, as well as Greenleaf, fully sustains the opinion here expressed upon this point.

But the record shows that during the cross-examination of Herron, a question was proposed by Allen’s counsel, which was objected to by the counsel for the state, and that the objection was sustained by the court; and that the counsel of Allen excepted at the timo thereto. The following is the question proposed by Allen’s counsel to Herron on bis cross-examination: “ If Allen is convicted, do yon exjject to be prosecuted?” We are clearly of opinion that the accused was entitled to an answer to this question. It was material and pertinent to show the influences and inducements under which the witness testified. For, although Herron was a competent witness, the degree of credibility to whieh he was entitled, was a matter depending, perhaps, not less upon the influences and inducements he might have to swerve from the truth, than upon his moral character. The depravity and turpitude of the witness was to a great extent before the jury, in his *own acknowledged complicity, as principle, in the criminal act charged. But the accused had an unquestionable right, as well by the answers of the witness on cross-examination, as by other proof, to still further invalidate his credibility, by showing an existing motive in the mind of the witness to give testimony against him, regardless of truth. It is true the record shows that Allen was permitted to prove by Herron, what communications he had held with the prosecuting attorney, or any other person connected with the prosecution, in reference to his not being prosecuted; but that was not all to which the accused was entitled. The substantive fact of importance to invalidate the testimony of Herron was, that_ he expected to he the gainer by the conviction of Allen. If he really believed that, in case of Allen’s conviction, he, Herron, would be discharged ; and that in case Allen was not convicted, he, Herron, would be put upon his trial and be convicted, Allen had the right to have the jury know the strong inducement to swear falsely against him, under which Herron testified. Nor could the fact be at all material, whether Herron had come to so regard his own safety, as depending upon Allen’s being convicted, from conversations with the prosocuting attorney, or from conversations with his own friends, in whose information and representations he had implicit confidence. The material fact in which Allen had an interest, and right to show to the jury by a cross-examination, was the biasing influence under whieh Herron had given testimony against him. And the court, by sustaining the objection, denied him that right. We are of opinion that the court erred in sustaining the objection; and, for this cause, the judgment of the court of common pleas must be Reversed,'and the cause remanded to that court for further proceedings.

Brinkerhoee, C. J., and Scott, Peck, and G-holson, JJ., concurred  