
    *JULY TERM 1834.
    JUDGBS PRESBNT.
    
      Saunders,
    
    
      Lomax,
    
    
      Summers,
    
    
      Estill,
    
    
      Upshur,
    
    
      Duncan,
    
    
      May,
    
    
      Cl op ton,
    
    
      Field.
    
    Stevens v. The Commonwealth.
    July, 1834.
    Arson — County Jail — Indictment—Description of Build-ins?— Surplusage. — Indictment for arson describes the bouse burned as “the county jail and prison of the county of H. being- the house of L. J. sheriff and jailor of the said county:” EEei.d, the burning of such jail is felony by the statute, 1 Rey. Code, ch. 160. § 4, and whether the j ail may bo properly laid to be the house of the sheriff and jailor or not. that part of the description is unnecessary and may be rejected as surplusage.
    Petition for a writ of error to a judgment of the circuit superiour court of Hanover. Stevens was indicted in that court, tried and convicted of burning the common jail and county prison of Hanover, and sentenced to imprisonment in the penitentiary for the term of five years according to the verdict. There were several counts in the indictment; in the fourth of which it was charged, that the prisoner feloniously set fire to and burned “the common jail and county prison in the county of Hanover, being the house of Eaney Jones, sheriff and jailor of said county.” At the trial, the prisoner moved the court to instruct the jury, that Haney Jones, as sheriff and jailor of Hanover, could not legally 'have any such right of property in the county jail, charged to have been burned, as would sustain the fourth *count in the indictment; but the court refused to give the instruction, and the prisoner excepffed to the opinion. And now he presented a petition to this court, for a writ of error, assigning for error, 'the refusal of the court to give the instruction.
    Briggs, for the petitioner.
    
      
      See monographic note on “Indictments. Informa-tions and -presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
   MAY, J.

The first three sections of the statute concerning arson, 1 Rev. Code, ch. 160, p. 587, prohibits the burning of certain houses therein described; jails not being within those provisions. The fourth section prohibits the burning, “either in the day or the night, of any house or houses whatsoever, other than those enumera ted in the three first sections.” And under this provision, we are of opinion, that the petitioner was indictable for burning the jail and prison of Hanover; and tha t the indictment properly and sufficiently described the house as the common jail and county prison of that county. Waving the objection, which is felt by some of us, to the form in which this question was presented to the circuit superiour court; and not deciding, as two of ns are inclined to do, that the jail may properly be termed the house of the sheriff and jailor who keeps the kej's and has the control thereof; we are all of opinion, that this portion of the description was intirely unnecessary, and should be regarded as surplusage.

Writ of error denied.  