
    May v. The State.
    
      Indictment for Arson.
    
    1. Ownership of building burned; whether to be laid in husband or wife. In an indictment for the burning oí a corn-pen containing corn (Code, § 3783). the_ ownership is properly laid in the wife, when it is shown that she raised and gathered the corn, and built the pen, during the absence of her husband in another State, on land which belonged to him, but on which she resided.
    2. Sufficiency of indictment; arson in third degree. — In an indictment for arson in the third degree, it is not sufficient to aver, pursuing the words of the statute (Oode, \ 3784), that the burning was “under such circumstances as did not constitute arson in the first or second degree,” but the facts and circumstances must be stated.
    3. General verdict of guilty, under indictment containing good and bad counts. — When an indictment contains two counts, one of which is defective, but no demurrer is interposed to it, a general verdict of guilty will be referred to the good count, and the conviction will be sustained*.
    Ebom the Circuit Court of Oouecuh.
    Tried before the Hon. John P. Hubbabd.
    The indictment in this case was found in April, 1888, and contained two counts; tbe first charging, tbat tbe defendant, Anderson May, “willfully set fire to and burned a corn-pen containing corn, tbe property of Flora Davidson;” and tbe second, tbat, “under such circumstances as did not constitute arson in tbe first or second degree, be did willfully set fire to or burn a corn-pen containing corn, tbe property of Flora Davidson.” There was no demurrer to tbe indictment, and the cause was tried on issue joined on tbe plea of not guilty. On tbe trial, as appears from tbe bill of exceptions, Flora Davidson, a colored woman, was examined as a witness for tbe State ,and testified to circumstances wbicb tended to show tbat tbe defendant, wbo bad married ber daughter, was tbe person wbo burned ber corn-pen, containing about thirty bushels of corn, one night in November, 1887. She further testified, on cross-examination, that she lived on land wbicb bad been entered by ber husband, Joe Davidson, as a homestead under tbe laws of tbe United States; tbat ber husband was working in Florida, but came home occasionally, tbe last time previous to the burning being in June, 1887; “tbat she occupied and cultivated tbe premises, and bad done so all along; tbat she bad tbe pen built during ber husband’s absence, and cultivated and gathered tbe corn wbicb was burned.” On this evidence, “tbe point of contention being,” as tbe bill of exceptions states, “tbat tbe ownership of tbe crib should have been laid in tbe husband, and not in tbe wife,” tbe court charged tbe jury as follows:' “If tbe jury find from tbe evidence tbat Flora Davidson is tbe wife of Joe Davidson, and bad tbe corn-pen built during her husband’s absence; and tbat tbe corn in tbe crib was raised by ber, and put in. tbe crib; and tbat she was in possession of tbe premises, — then tbe crib was ber property, so far as to make it ber property as described in tbe indictment.” To this charge tbe defendant excepted.
    Tbe jury returned a verdict in these words: “We, the jury, find the defendant guilty.” Tbe defendant thereupon moved in arrest of judgment — 1st, “because tbe jury did not assess tbe fine or punishment on tbe defendant;” 2d, “because tbe indictment contains two counts, one charging a felony, and one a misdemeanor, and tbe verdict does not specify tbe offense of wbicb tbe defendant is found guilty.” Tbe court overruled tbe motion, and sentenced tbe defendant to imprisonment in tbe penitentiary for tbe term of two years and six months.
    
      Bowles & Rabb, for the appellant.
    Thos. N. McClellan, Attorney-General, for the State.
   CLOPTON, J.

— The defendant is indicted for having willfully set fire to and burned a corn-pen containing corn. In the indictment, the ownership is laid in Flora Davidson, who is a married woman. The land, on which the pen is located, was entered by her husband, who is, and has been for some time, employed at wort in Florida, coming home occasionally. . The wife occupied and cultivated the premises, made and gathered the corn, and had the pen built during his absence. Arson is rather an offense against the possession, than the property, and the possession, not the estate or interest in the property, must be described. — Adams v. State, 62 Ala. 177. Flora Davidson having the actual and rightful possession of the pen, and the premises on which it was situate, and the corn, which was her earnings, being under the statute her separate property, ownership in her was properly laid in the indictment.

The statute, defining arson in the third degree, does not prescribe in express terms its constituents, but merely designates the offense. — Code, 1886, § 3784. In such case, it is not sufficient to follow the words of the statute. The circumstances, which reduce the offense to arson in the third degree, should be averred. The second count of the indictment is defective, but was not objected to by demurrer. The first count contains all that is requisite to constitute arson in the second degree. When an indictment contains two counts, one of which is good, and the other defective, and no demurrer is interposed to the defective count, a general verdict of guilty will be referred to the good count, and the conviction sustained. — Rowland v. State, 55 Ala. 210; Glenn v. State, 60 Ala. 104.

Affirmed.  