
    Sarah Denbow v. The State of Ohio.
    An indictment for burning stacks of wheat is not supported by evidence of burning shocks of wheat.
    This is a writ of error to the Court of Common Pleas of Washington county.
    The indictment charged the plaintiff in error with willfully and maliciously setting fire to, and burning fifty stacks of wheat. On the trial, the only witness examined, testified that he saw the defendant, Sarah Denbow, setting fire to divers shocks of wheat, standing in rows in the field where it grew. The witness further stated, that the shocks consisted cf twelve sheaves^ that two of the sheaves were cap sheaves, to cover the remainder. He also stated that he called them shocks, and not ■stacks. The defendant’s counsel moved the court, to instruct the jury, that this evidence did not support the indictment, and that their verdict should be for the defendant; which the court refused. To which refusal of the court to charge, the defendant excepted. The jury returned a verdict of guilty, and the court passed sentence.
    
      Archbold Green, for plaintiff in error.
    
      Henry Stanbery, (attorney general,) and W. S. JNye, (prosecuting attorney,) for defendant.
   Caldwell, J.

The statute, under which this indictment is framed, makes it penal to set fire to, or bum, stacks of wheat, but says nothing about shocks.

When any article of property is referred to in a penal statute, as the subject of an offense, only such property as is usually designated by such term, can be supposed to be embraced within its provisions.

When things of the same kind have different names, arising from difference in size, number, age, situation, or any other circumstance, only such as are expressly mentioned by the terms generally appropriated to them, can be held to have been contemplated by the legislature. The charge in this case was for burning stacks of wheat. The proof was the burning of shocks of wheat. Now if the terms, shock of wheat, and stack of wheat, are equivalent, then the proof will sustain the indictment: but the* only witness who testifies, states that he considers them different.

And in common parlance, the two terms have a totally distinct, and different signification. The shock is the term applied to the small collection and arrangement of a few sheaves together, in the field, in such a manner as to protect them against the weather for a few days, until the farmer has time to gather them into his barn, or place them in the large conical pile called n stack.

Why the legislature should have provided a penalty for the-burning of the one, rather than the other, will be apparent tc any one. The court of common pleas should have charged the jury as requested by defendant’s counsel, and, by refusing, so to do, have clearly erred. The judgment will therefore be reversed.  