
    State v. Downs.
    An indictment, charging out-building adjoining that the building was house. that the respondent attempted to set fire to an a dwelling-house, is not supported by evidence near to but not in contact with the dwelling-
    Indictment, charging that the respondent attempted to set fire to an out-building adjoining a dwelling-house. The evidence was, that the out-building did not touch the house; that the space between them at the base was four inches; that the house was higher than the out-building, and the roof of the house extended over it, leaving a space of about three feet between its top and the under side of the roof of the house. The respondent’s objection that there was a variance was proforma overruled. Verdict guilty, and motion in arrest of judgment.
    
      Cogswell and Slone, for the respondent.
    
      Rogers, solicitor, for the state.
   Stanley, J.

The motion for the discharge of the respondent ■should have been granted. There was a variance between the indictment and the proof. The out-building did not adjoin the dwelling-house. “Adjoining” is a synonym for “adjacent to,” “ contiguous.” it was not adjacent to or contiguous, that is, in contact with the house. Arkell v. Ins. Co., 69 N. Y. 192; Rex v. Hodges, 1 Moo. & M. 341; Peverelly v. People, 3 Park. 59; 2 Russ. Cr. 557-561.

The statute upon which this indictment was found specifies three distinct offences, although the punishment is the same in all of them. They are, — first, burning a dwelling-house; second, burning any out-building adjoining a dwelling-house; third, burning any building whereby a dwelling-house shall be burned. The words an out-building adjoining a dwelling-house are words of description, and must be proved. A conviction under this indictment, upon the evidence received, would be no bar to an indictment for attempting to set fire to an out-building whereby a dwelling-house might be burned, and the evidence received in this case would support such a charge.

Judgment arrested.

Bingham, J., did not sit: the others concurred.  