
    E. J. Williams, Plaintiff in Error, v. State of Florida, Defendant in Error.
    
    En Banc.
    Opinion filed October 29, 1930.
    
      
      Wilson <& Boswell, for Plaintiff in Error;
    
      Fred II. Davis, Attorney General, and Boy Campbell, Assistant, for Defendant in Error.
   Terrell, C. J.

Plaintiff in error was tried and convicted in the Criminal Court of Record of Polk County on an information charging that he “did unlawfully, wilfully, and feloniously set fire to and burn a building constructed for use as a dwelling, but not in actual use as a dwelling, owned by Early J. Williams and Mandy B. Williams on North Ohio Avenue in the city of Lakeland, Polk County, Florida.” Motion for new trial was denied, a sentence of two years in the state penitentiary was imposed and writ of error was taken to the judgment.

The information on which plaintiff in error was convicted was cast under Section Two of Chapter 11812, Acts of 1927 (Section 7209, Comp. Gen. Laws of 1927) which is as follows:

“Any person who willfully or maliciously sets fire to or burns or causes to be burned, or who aids, counsels, or procures the burning of any barn, stable, or other building, the property of himself or of another not a parcel of a dwelling house; or any shop, storehouse, warehouse, factory, mill, or other building, the property of himself or of another; or any church, meeting house, court house, work house, school, jail, and other public building or any public bridge; shall upon conviction thereof, be sentenced to the penitentiary not more than ten years. ’ ’

Plaintiff in error challenges the constitutional validity of Chapter 11812, Acts of 1927, the purpose of which was to enlarge the scope of the crime of arson and to repeal Sections 5106, 5107, 5109, 5110, 5111, and 5114 of the Rev. Gen. Stats, of 1920. At common law arson was the willful and malicious burning of the dwelling house of another. It also included any building or out-house within the curtilage of the dwelling house appurtenant thereto. It was an offense against the security of the habitation and had reference to the possession rather than the property. For this reason, it was a felony of great enormity and was punishable by death. Statutes in many states have materially changed the common law definition of arson and apply it to the burning of all species of real and personal property. Such statutes are designed for the protection of the property as well as the security of the habitation. In the absence of statute defining and punishing arson, the common law definition will be relied on. State v. McGowan, 20 Conn. 245, 52 Am. Dec. 336. An incomplete or unfinished structure which has never been occupied for that purpose is not a dwelling house in the common law acceptation of the crime of arson. State v. McGowan, supra; State v. Young, 139 Ala. 136, 36 So. R. 19, 81 Am. Dec. 67, note, 101 A. S. R. 27, note, 15 Ann. Cas. 547, note. See also Davis v. State, 153 Ala. 48, 44 So. R. 1018, 127 A. S. R. 17, 15 Ann. Cas. 547 and note. This Court has held that occupation is an essential element of the common law crime of arson. Hicks v. State, 43 Fla. 171, 29 So. R. 631; Cox v. State, 87 Fla. 79, 99 So. R. 126.

Now; in the light of this discussion let us examine the statute brought in question. Its title is as follows:

“AN ACT to Define and Punish Arson, and to Repeal Sections 5106, 5107, 5109, 5110, 5111, and 5114 of the Revised General Statutes of the State of Florida Relating Thereto.”

In Section One arson and its punishment is extended to the act of burning one’s own dwelling house but otherwise the scope of the crime as understood at common law which is the law of this state, is not extended nor is it mentioned in the body of the act. With the exception of Section One and Section Six every section of the act defines and punishes a crime other than arson as known to the common law, yet we will search in vain for any provision making any of these crimes arson or punishable as such. Section Six attempts to repeal all laws now in effect relating to these crimes.

We do not decide whether all the crimes condemned in Sections Two, Three, Four, and Five of Chapter 11812, Acts of 1927, may be defined and punished as arson; similar acts in other jurisdictions when properly constructed have been held good but as to the act under review there was no effort to extend the common law rule to these crimes. The title and body of the act except as to Section One were inconsistent and deceptive, dealt with a different subject matter which was not properly connected, and was, therefore repugnant to Section Sixteen of Article Three of the Constitution.

It follows that Section One of Chapter 11812, Acts of 1927, is embraced within the title thereof and is good against the assault made on it but that Sections Two, Three, Four, Five, and Six which deal with new subject matter are bad and must fall for the reasons herein stated. The information on which defendant was convicted was predicated on Section Two of Chapter 11812, Acts of 1927, and there being no other provision of law on which it can be supported it must also fall. The motion to quash should have been, granted. Ex Parte Norman A. Winn decided May 20, 1930.

Reversed.

Wi-iitfield, Strum and Brown, J. J., concur.

Ellis and Buford, J. J., dissent.

Ellis, J.,

(dissenting) : As Chapter 11812 Laws 1929 is void because repugnant to Art. Ill Sec. 16 of the Constitution in that not only the Acts but the Title thereof contains more than one subject, Section 5109 Rev. Gen. Stats, remain in force. I think the indictment is sufficient under such Section.

Buford, J.,

(dissenting in part) : I am unable to agree with the opinion prepared by Chief Justice Terrell in which it is held that section 1 of chapter 11812, Acts of 1927, is valid. The title of that Act is, “An ACT to Define and Punish Arson, and to Repeal Sections 5106, 5107, 5109, 5110, 5111 and 5114 of the Revised General Statutes of the State of Florida, Relating thereto.” The body of the Act following the title embraces more than one subject and matter not properly connected therewith. The title of the Act is two-fold. First', it is an Act to define and punish arson. Next, it is an Act to repeal six sections of the Revised General Statutes, one of which is section 5106. This section condemned an Act which at common law constituted arson, but it did not declare that offense to be arson. Such offense, nevertheless is arson. The other five.sections denounced as crimes certain acts which were not embraced within the crime of arson under the common law and which were not declared to be arson under the provisions of our statutes. The language in the title of the Act here under consideration, to-wit: “Relating Thereto” is misleading and of no force and effect because five of the sections of the Revised General Statutes referred to in the title and in the body of the Act do no relate to arson.

. Section 6 of the Act attempts to repeal six different sections of the Revised General Statutes. If that section is valid then we have no statutory provision in this State tO' punish as crimes the act's which are denounced in sections 2, 3, 4 and 5 of the Act here under consideration.

The Court is not authorized to assume to determine that it was the intent of the legislature to pass an Act to- define and punish arson and strike down the remainder of the Act. It was entirely within the legislative prerogative to repeal the sections sought to be repealed by the Act and to leave nothing standing in the place thereof.

That part of the title of the Act, “An Act to Define and Punish Arson” is fulfilled by section 1 of the proposed Act and that part of the title of the Act, ‘To Repeal Sections 5106, 5107, 5109, 5110, 5111 and 5114 of the Revised General Statutes of Florida,” is fulfilled by section 6 of the Act. Therefore, both the title of the Act and the body of the Act relate to different subjects not properly connected one with the other.

For the reasons stated, the entire Act should be held void. See Ex Parte Norman A. Wynn, decided May 20, 1930.

Eluis, J., concurs.  