Arson — "Wantonly and Wilfully" — Indictment — "Shop."
1. An indictment for a violation of section 985 of The Code, as amended by chapter 66, Laws of 1885, which fails to allege that the act of the defendant was done "wantonly and wilfully," is fatally; defective, and the use of the words unlawfully, maliciously or feloniously, will not supply the lack of the essential descriptive terms.
2. A house used for the purpose of selling or manufacturing goods. etc., is a "shop" within the meaning of that term, as it is employed in the statute.
( S. v. Massey, 97 N.C. 465; S. v. Stanton, 1 Ired., 424; S. v. Butts, 92 N.C. 784, and S. v. Brigman, 94 N.C. 888, cited.)
The indictment charged that the defendant "feloniously, wilfully, maliciously and unlawfully did set fire to a certain house, used as a shop and store, then and there situate," etc.
On the trial there was a verdict of guilty. The defendant (642) moved in arrest of judgment, assigning as grounds of the motion, first, that the indictment charges that the defendant "did set fire to a certain house"; and secondly, that it does not charge the act to have been done "wantonly and wilfully."
The court overruled the motion, and gave judgment against the defendant. The latter having excepted, appealed.
MERRIMON, J., after stating the case:
The defendant is charged in the indictment with a violation of the statute (The Code, sec. 985, par. 6), as amended by the subsequent one (Acts 1885, ch. 66), which provides, as amended, that "whoever shall wantonly and wilfully set fire to any church, chapel or meeting-house, or shall wantonly and wilfully set fire to any stable, coach-house, out-house, warehouse, office, shop, mill, barn or granary, or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them respectively shall then be in the possession of the offender, or in the possession of any other person, shall be guilty of felony, and imprisoned in the penitentiary for not less than five nor more than forty years." This statute, before it was so amended, did not contain the words "wantonly and wilfully," but in the place of them, wherever they now appear, the other words "unlawfully and maliciously," which the amendment struck out of it.
It will be observed that the indictment charges that the defendant wilfully "did set fire to," etc., but it does not charge, as it should do, that he " wantonly and wilfully did set fire to," etc. S. v. Massey, 97 N.C. 465. It does, however, charge that he "feloniously, . . . . maliciously and unlawfully did set fire to," etc.; and it was contended on the argument here that these words sufficiently supply the place and meaning of the omitted essential word "wantonly," It (643) is true that if a word or words, equivalent in meaning and effect to the word of the statute descriptive of and defining the offense, were used, this would be sufficient. S. v. Stanton, 1 Ired., 424; S. v. Butts, 92 N.C. 784. But the words, "unlawfully and maliciously," used, cannot supply the place of the word "wantonly," omitted, which, by the amendment mentioned, was in part substituted for them, as was decided in S. v. Massey, supra. Nor does the word "feloniously" supply the omission. This word implies that the act charged to have been done proceeded from an evil heart and wicked purpose. It is a highly technical term, and is employed particularly in criminal pleadings to describe and charge offenses that proceed from a depraved heart and import wicked purpose; that such offenses are felonious in their nature, and are done with a deliberate intent to commit a crime. Wantonly, in a criminal sense, implies that the act was done of a licentious spirit, perversely, recklessly, without regard to propriety or the rights of others, careless of consequences, and yet without settled malice. The meaning and application of the term is well considered by the Chief Justice in S. v. Brigman, 94 N.C. 888. It is essential that the indictment shall charge that the defendant "wantonly" as well as "wilfully set fire to," etc., and as this is not done is terms or effect, it is fatally defective — it does not charge the offense intended, and the judgment must therefore be arrested.
As to the first ground of objection to the indictment, we think it unfounded. A "shop," in the sense of the statute, implies a house or building in which small quantities of goods, wares or drugs and the like are sold, or in which mechanics labor, and sometimes keep their manufactures for sale; and as it is charged that the defendant . . . "set fire to a certain house used as a shop and store," it in effect and (644) sufficiently charges that he set fire to a "shop," a sort of house expressly named in the statute. A house used for the purpose of a shop is a shop while so used, within the meaning of the statute, whether built for that purpose or not. One of its purposes is to protect houses and buildings used as shops, and thus to protect shops.
As the judgment must be arrested, it is unnecessary to advert to other errors assigned in the record. There is error.
Let this opinion be certified to the criminal court of New Hanover county according to law.
Cited: S. v. Howe, 100 N.C. 452; S. v. Harrison, 115 N.C. 706; Hansley v. R. R., 117 N.C. 572; S. v. Pierce, 123 N.C. 746; S. v. Battle, 126 N.C. 1044; S. v. Harwell, 129 N.C. 551, 555; S. v. Millican, 158 N.C. 623.
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