
    Benbow v. The State.
    
      Indictm cut for Arson.
    
    1. Arson; defendant can he convicted of attempt to commit arson. Under an indictment for arson, a defendant can be convicted of an attempt to commit arson.
    2. Same; same; verdict and judgment. — Under an indictment which charges that the defendant did “willfully set fire to or burn a dwelling house,” a verdict which finds the defendant guilty of an attempt to commit arson, will be referred to the indictment, and be held as finding the defendant guilty of an attempt to commit arson in the first or second degree; and such verdict is not subject to the objection of indefiniteness, in that it does not find expressly whether the attempt was to commit the offense in the first or second degree.
    3. Charge to the jury. — On a trial under an indictment for arson, where the evidence shows that the fire was extinguished before great harm was done, if, at the request of the defendant, the court instructs the jury that the “terms ‘set fire to’ and ‘burn’ as used in the indictment are synonymous, and either term means that the house or some part thereof must be consumed by fire,” it is not error for the court to further instruct the jury that “If the surface of any plank or part of the lattice work of said house was charred by the flames, this is a destruction or consumption of a part of said house within the meaning of the law.”
    4. Criminal laio; capacity to commit crime; charge in reference thereto. — In a criminal prosecution, where it is shown that the defendant was between twelve and fourteen years of age, a charge which instructs the jury “that the law presumes a person between the ages of 7 and 14 yeafs incapable of committing crime, and the evidence to overcome this. presumption must be strong and clear beyond doubt and contradiction,” is erroneous; it not being necessary to prove any issue for the State in a criminal trial, beyond doubt and contradiction:
    5. Same; motion for new trial. — The action of trial courts upon motions for new trials in criminal cases is not revisable.
    Appeal from the City Court of Montgomery.
    Tried before the Hon. A. D. Sayre.
    The appellant in this case was tried under an indictment which charged that she “willfully set fire to or burned a dwelling house of Pat Gibbons, in which there was at the time a human being,” etc. The defendant was convicted of an attempt to commit arson, and sentenced to the penitentiary for two years.
    On the trial of the case, the evidence for the State showed that the house occupied as a dwelling by Pat Gibbons, and his wife was set fire to by oil being poured on the lattice-work attached to the front porch, which was ignited.
    A police'officer Of the city of Montgomery testified that he arrested the defendant, and without any threats or promises made by him the defendant confessed that she set fire to said house. The captain of the police force also testified to the 'confession.
    There was evidence for the defendant showing that at the time of the trial she was between 12 and 14 years of age. There was also evidence for the defendant tending to show that at the time the fire in question was discovered, she was several blocks away from the house of Pat Gibbons playing with some other children. The defendant testified that she made the statements testified to by the police officer under the influence of fear.
    The evidence showed that the lattice-work which was set fire to was made of wooden strips and was under the front porch of the dwellling house and attached to it. There was some conflict in the evidence as to how far the burning had progressed before it was put out, some of it tending to show a substantial charring of the pieces of lattice-work, While some of the evidence tended to show that only the kerosene oil was burned, leaving the wood uninjured.
    
      'The hill of exceptions contains the following recital as to the court’s charge in reference to the law relating to the attempt to commit arson: “After then court bad delivered its general charge to the jury, the defendant requested him to charge the jury upon the law of an attempt ito commit arson. In complying with this request the court charged the jury that an attempt to commit arson was a misdemeanor and ivas punishable as other common law misdemeanors. The, defendant did not except to this charge, nor did ¡the solicitor make'any objections, though present. The court then charged the jury that in the event they found defendant guilty of an attempt to commit arson, the question of punishment must be decided. That if they thought the proper punishment was a fine, they should assess one not to exceed $500, and if they thought the proper punishment hard labor they must return a verdict in-this form: AVe, the jury, find the defendant- guilty of an attempt to commit arson? and leave the punishment to the court. The defendant did not except to this charge nor did the solicitor object |to it, though present.”
    At the request of the defendant, the court gave to the jury the following written charge: “The terms ‘set fire to’ and ‘burn’ as used in the indictment in this case are synonymous, and either term means that the house or' some pant thereof must be consumed by fire.” After having given this charge, the court, at the request of' the solicitor for the State, gave the following written charge to the jury: “But if the surface of any plank or part of the lattice-work of said house was charred by the flames, this is a destruction or consumption of a part of said house within the meaning of the law.” To the giving of this charge the defendant duly excepted, and also excepted to the refusal of the court to give to the jury the following written charge: “I charge you, gentlemen of the jury, that the law presumes a person between -the ages of 7 and 14 years incapable of committing crime, and evidence to overcome this presumption must be strong and clear beyond doubt and contradiction.”
    The verdict of the jury upon which the sentence of the court was pronounced is copied in the opinion.
    
      Before the sentence of the court was passed the defendant made a motion for a new trial, which motion was overruled. To this ruling [the defendant duly excepted.
    Jos. Calloway, for appellant,
    cited Dover v. State,' 75 Ala. 40; Story v. State, 71 Ala. 329.
    Citas. G. Brown, Attorney General, for the State,
    cited Gorman v. State, 40 Ala. 6; 2 Bishop’s New Criminal Law, 6, p. 3, § 10; 1 McCain’s Criminal Law, 513, § 532.
   McClellan, C. J.

Setting fire to or burning a dwelling house is arson in the first degree, if the house is inhabited, and in the second degree, if it is not inhabited; and is always a felony. — Code, §§ 4336, 4337. Such burning can never, of course, be arson in the third degree, which is a misdemeanor. — Code, § 4340. An indictment charging the burning of a dwelling house, charges also an attempt to burn a dwelling house, for an accomplished burning necessarily includes every element of an abortive attempt — the major offense charged embraces all minor offenses which would be necessarily committed in consummating the major crime — and hence under an indictment for arson of a dwelling house there may be a conviction of an attempt to commit arson of a dwelling house; but, as such indictment does not embrace 'arson in the third degree, it equally cannot embrace an attempt to commit arson in the third degree; and upon it no conviction could be had either for a consummated burning or an attempt under section 4340 of the Code. — James v. State, 104 Ala. 20; Stone v. State, 115 Ala. 121; Lynch v. State, 89 Ala. 18; State v. McFarland, 121 Ala. 45; Gilmore v. State, 99 Ala. 154.

The indictment in this case charges that the defendant set fire to or burned a dwelling house. There was evidence tending to show that the defendant attempted to burn the dwelling house by igniting kerosene which she had poured on lattice work of a porch of the dwelling house, but that the flame wag discovered and extinguislied before any part of the house was burned; and on this phase of the evidence the jury returned the following verdict: “We, the jury, find the defendant guilty of an attempt to commit arson;” and upon this verdict there was judgment of felonious attempt to commit arson under section 4338 of the Code, and sentence to the penitentiary for two years. That section provides : “An attempt to commit arson, in either the first or second degree, is a felony punishable, on conviction, by imprisonment in the penitentiary for noit less than two, nor more than five years.” As the indictment involved no charge of an attempt, except, as we have seen, an attempt to commit arson in either the first or second degree, this verdict, when referred, as of course it must be, to the indictment, must he held to be a finding of guilt of an attempt to commit arson in the first or second degree, the felonious attempt denounced by section 4338; and there is no room for the contention of counsel that the verdict was bad for indefiniteness in that it did not find expressly that the attempt was to commit the offense in its first or second degree.

The charges given by 'the court to the effect -that any attempt to commit arson is a misdemeanor were too favorable (to the defendant. Besides no" exception to them were reserved by her. She can take nothing on account of them.

The charring of wood by fire is the burning of it within the meaning of the statutes defining arson as eharged by the court at the request of the solicitor.

No issue in a criminal trial need be proved “beyond doubt or contradiction” for the State. The second charge requested by defendant was, therefore, properly refused.

The action of trial courts upon motions for new trials in criminal cases is not revisable.

Affirmed.  