An indictment, charging that the respondent attempted to set fire to an out-building adjoining a dwelling-house, is not supported by evidence that the building was near to but not in contact with the dwelling-house.
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.