
    The State vs. George E. De Bruhl and Jesse De Bruhl.
    Under the statute 22 and 23 Car. 2, c. 7, which provides, that “if any person shall, in the night time, maliciously, unlawfully, and willingly turn, or cause to be burnt or destroyed, any ricks, &c„ barns, or other houses or buildings,” <fcc., the injury, to come within the meaning of the statute, must amount, either to a total demolition of the building, or be such as unfits it for the purpose for which it was erected.
    BEFORE GLOVER, J., AT KERSHAW, FALL TERM, 1856.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ Tbe defendants were indicted and convicted for destroying buildings in tbe nigbt time. Tbe Statute (22 and 28 Car. 2, cb. 7,) under wbicb tbe indictment was framed provides, that 1 if any person shall, in tbe nigbt time, maliciously, unlawfully and willingly burn, or cause to be burnt or destroyed, any ricks or stacks of corn, bay, or grain, barns, or other bouses, or buildings, or kilns.’ &c.
    “ Richard E. West was building, but bad not yet completed, nor occupied, a dwelling bouse, smoke bouse, and crib. Tbe rafters of tbe smoke bouse were up and tbe ends weather-boarded, and tbe body of tbe crib bad been raised. Between tbe evening of tbe 23d and tbe morning of tbe 24th of February last, tbe smoke bouse bad been prized up and three logs taken out, and tbe top was so pushed back that it nearly fell, and tbe crib was let down at one corner.
    “Jacob Young said, ‘be bad settled Richard E. West, bis son-in-law, on this land, and that be bad drawn a deed conveying it to bis daughters, West’s wife, and Susan, who is dead; but that tbe deed is not yet delivered.’
    
      “ Tbe smoke bouse and crib were uninjured on Saturday, an hour before tbe sun set, and tbe next morning, between eight and nine o’clock, A. M., witnesses saw tbe condition of tbe body and roof before described. After dark, on Saturday, George E. De Bruhl threatened that be would in a short time, make a black cross mark on Jacob Young and West, and about 9 o’clock, at night, be and Jesse De Bruhl left their father’s for George E. De Bruhl’s residence, which is in the direction of West’s. George E. De Bruhl was drinking, and they had a three gallon jug along.
    “There was evidence in proof of ill-will between the parties, and pointing at these defendants as the perpetrators of the act; but which it is not necessary to report.
    “ I will only add, that the jury was instructed to inquire if it was done in the night time, and maliciously, unlawfully, and willingly.”
    The defendants appealed and now moved in arrest of judgment on the ground:
    That the houses were not destroyed, as alleged in the indictment, but only injured.
    And failing in this, then they moved for a new trial on the same, and also on the following grounds:
    1. That there was no evidence that the act was done in the night time.
    2. Because the houses were not the property of Bichard E. West, as alleged in the indictment.
    Taylor, Kershaw, for appellants.
    
      Fair, solicitor, contra.
   The opinion of the Court was delivered by

MuNRO, J.

The only-question to be considered is, whether the case made against the defendants comes within the purview of tbe Statute of 22 and 23 Car. 2, cbap. 7, upon, which, the indictment is founded.

Notwithstanding a period of nearly two centuries has elapsed since the enactment of this statute, and almost a century and a half since its adoption into the criminal code of this State, with the exception of the case of the State vs. Kirkpatrick (2 Brev. 440), and the recent case of the State vs. Bosse (8 Rich. 276), I have been unable to find, after the most diligent search, a single case, English or American, in which its provisions have been adjudicated.

It appears from the circuit report, that the buildings consisted of a smoke house and crib, neither of which was finished, and the injuries done to them consisted in the defendants having prized up the former, and removing three logs, and pushing back the roof so that it nearly fell, and letting down the end of the crib.

If the words “ or destroyed,” be stricken out of the statute entirely, it is clear, that by no rule of construction, can its. remaining language be made to embrace any injury to a building, other than to those, in which fire is the element' used in the work of destruction — and this by the way is the construction that has been placed upon the statute as it now stands, by some of the members of the Court.

But, conceding the construction which was contended for in behalf of the State to be correct, namely, that by the insertion of those words.into the statute, it was meant to include every kind of injury that might be done to a building whether by fire or otherwise, — it would, however, be a strained construe-1 tion of the words “ or destroyed,” standing alone .as they do, and unsustained by any thing in the context — to say nothing-of the rule which enjoins a strict construction of penal enactments — to hold, that these words were intended to embrace, within the provisions of this highly penal statute, every possible injury, however slight or trivial, that might be done to a building, merely because done in the night time; such for example as the breaking of a door or a window, or even to such injuries as those that were done to the buildings in question, by the defendants. When it is manifest, whether we resort to the context as furnishing an index to the scope and design of the authors of the statute — or to the ordinary meaning of the word “ destroyed” — that its sole purpose was to include within its provisions, such injuries only, whether by fire, or otherwise, as would amount, either to a total demolition of a building, or such as would unfit it for the purpose for which it had been erected.

This view is we think 'fully sustained by the construction which has been given by the English Courts to a comparatively recent Act of their parliament, containing similar provisions to those contained in the one under consideration. The Act to which I refer is the 7th & 8th Geo. 4th, chap. 30, sec. 8th, which enacts “That if any persons riotously and tumultuously assembled together, to the disturbance of the public peace, shall unlawfully demolish, pull down and destroy, or begin to demolish, pull down and destroy any church or chapel, &c., or any house, stable, &c., shall be guilty of felony, &c.”

In Ashton's case, which will be found in Eoscoe’s Crim.Ev. 886; “ The beginning to pull down, said Park, J., in a case where the prisoners were so charged — means not simply a demolition of a part, but of a part with intent to demolish the whole. If the prisoners meant to stop where they did (i. e. breaking windows and doors) and to do no more, they are not guilty, but if they intended when they broke the windows to go further, and destroy the house, they are guilty of the offence.” And in R. vs. Adams, 51 Eng. Com. Law, 168, Coleridge, J., said to the jury, “Before you can find the prisoners guilty, you must be of opinion, that they meant to leave the house no house at all in fact. If they intended to leave it still a house, though in a state however dilapidated, they are not guilty under this highly penal statute.”

It is clear however that tbe defendants’ motion in arrest of judgment cannot prevail, and for tbe reason, that tbe indictment sets out an offence that is clearly within the statute,- and is therefore upon its face free from exception; and if it had been sustained by the proof, judgment must have been awarded upon it.

But the motion for a new trial must be granted; and it is .acccordingly ordered.

It is further ordered, that the prisoners be remanded to the jail of Kershaw District, and be let to bail, themselves in the sum of five hundred dollars, and two or more good sureties in the same sum among themselves.

O’Neall, . Wardlaw, Withers, and Whitner, JJ., concurred.

Motion granted.  