
    SUPREME COURT.
    The People agt. Francis Didien.
    The constitution declares that “ no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury.”
    The defendant was indicted for the crime of arson in the first degree—charged with setting fire, in the nighttime, to an inhabited dwelling-house, the property of, &c., the penalty for which is death. On the trial, the proof established only the crime of arson in the third degree—the burning of the goods and furniture in the building, with intent to prejudice the insurance company.
    The question was, whether, if the legislature had power to classify offences different in their nature, under one general head, and to designate them, however unlike, as different degrees of the same offence, they had power to deprive the accused party of a proper specification in advance of the matters alleged against him ?
    
      Held, that the defendant, being chargeable with knowledge of the law (which is constitutional), was bound to take notice that the crime of arson was of different degrees; that under an indictment for a higher he might be found guilty of a lower degree of the same crime under the statute.
    
      New-York General Term,
    February, 1859.
    
      Before Roosevelt, Davies and Clerke, Justices.
    
   By the court—Roosevelt, Justice.

The prisoner, Didien, was convicted, in the court of general sessions, of the crime of arson in the third degree, “ for burning his property with intent to prejudice the insurance company.” A bill of exceptions was taken by his counsel, and returned with the proceedings to the supreme court. The prisoner insists, and it is the main point relied on, that the indictment which he was called upon to answer did not charge him with the offence of which he was found guilty, and that he was virtually convicted, there-, fore, without being indicted; while the constitution declares that no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury.”

The offence charged, it appears, was setting fire, in the nighttime, to an inhabited dwelling-house, the property “ of Amelia Asselin,” the penalty for which is death. On the trial, the district attorney admitted that tire proof, although sufficient to establish the burning of the goods, was insufficient to show that any portion of the building was burnt. He claimed, however, and the court so held,, that the prisoner, having been charged with a higher, might, notwithstanding, be convicted, not of a lesser offence, but of a lesser degree of the same offence. And if the statute, in relation to offences “ of different degrees,” is in that respect constitutional, such would seem to be the inevitable result.

Arson in all its grades, whatever may before have been its common law character, is now a statutory offence, and “ all the common law punishments,” formerly applicable to it, are expressly “ prohibited.” (2 R. S. 701, § 17.) It is declared by the statute to be an offence of four degrees; the first capital, the other three- subject only to imprisonment. The first degree, it is admitted, corresponds with the charge in the present indictment, and the third degree with the offence actually established. (Page 667, § 4.)

The crime charged was arson, by statute, and the crime proved was arson, by statute. The essence of the act, in either case, was the unlawful setting fire to combustible materials, whether houses or merchandise, endangering the lives or pecuniary interests of others. So, at least, the legislature have seen fit to regard it. For, instead of creating different crimes, they have divided the cases into different degrees of the same crime, declaring at the same time that “ upon an indictment for any offence, consisting of different degrees, as prescribed in this chapter (the different degrees of arson are prescribed in it), the jury may find the accused not guilty of the offence in the degree charged in the indictment, and may find such accused person guilty of any degree of, such offence, inferior to that charged in the indictment, or of an attempt to commit such offence.”

It is said, however, that even if the legislature had power to classify offences, different in their nature, under one general head, and to designate them, however unlike, as different degrees of the same offence, yet they had no power to deprive the accused party of a proper specification in advance of the matters alleged against him. But there is an obvious answer to this objection. The prisoner, being chargeable with knowledge of the law, was bound to take notice that the crime of arson was of different degrees: that under an indictment for a higher, he might be found guilty of a lower degree; that, although charged with setting fire to the building, he might be tried for setting fire to the goods and furniture in the building, even if the building itself (a very unlikely occurrence) should escape ignition ; and that, therefore, he must prepare himself to meet the charge in all its inferior degrees, not according to his own understanding of degrees, but according to the definitions of the legislature, as prescribed in this chapter.” When, therefore, he was charged with burning the house, he knew that the charge comprehended that of burning the goods in the house. There are grave objections, no doubt, to this brief and even vague mode of pleading in criminal cases, but I see in them no sufficient warrant for declaring the law which authorizes it void. Mor do I see that any evil to the prisoner has resulted in this particular case. The building in question, it appears, was a four story tenement house, with brick front only, with families on each floor. In the prisoner’s apartment there were a bed and three trunks or boxes. In each of these he placed camphene, which, on being ignited, produced at first -a smothered fire, but ultimately a flame. Such an act, it would seem, was scarcely distinguishable in criminality from the first degree of arson. It was setting fire to that which must almost inevitably result in igniting the building. Indeed, one of the witnesses swears that he saw a slight burn by the window casing, near the floor.” Can it be contended that a man, who deliberately, in the nighttime, applies a lighted torch to a bale of hay in a wooden tenement, filled with human beings, is not guilty of setting fire ” to the tenement? The offence, it will be remembered, is not the actual burning of the dwelling, but the “ setting fire to it.” As to the proof of insurance on the goods or supposed goods, it would seem to have been clearly admissible as showing fraudulent design on the part of the prisoner, or, in other words, to establish the allegation in the indictment, that the act was done “ feloniously, wilfully and maliciously.” H the evidence, then, was admissible and tended to convict the prisoner of the first degree of arson, as charged in the indictment, what ground has he to complain that, through the leniency of the public prosecutor, the jury acquitted him of the offence in that degree, but found him guilty (as the statute expresses it) of a degree of the offence “ inferior to that charged.”

Our decision, therefore, is, that the exceptions taken at the trial be overruled, and that the proceedings be remitted to the court in which the trial was had, with directions to proceed and render judgment according to law.  