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night as in the day, then, and on the said other days and times, there to be and remain drinking, tippling, fighting, quarreling, gambling, making a noise and misbehaving themselves, unlawfully and wilfully did permit, and yet does permit, to the great damage and common nuisance" &c., &c.

The premises referred to in this count of the indictment consist of a general store and restaurant in which the plaintiff in error carried on business. Among other proofs submitted on the part of the state was evidence showing that the defendant habitually violated the Vice and Immorality act by carrying on secular business (not within the exceptions of that statute) at his store on the Sabbath day; and the court charged the jury that if they should find the plaintiff in error conducted business on Sundays in the usual and ordinary way that he did on weekdays, they might convict him on this count of the indictment.

We think this instruction was erroneous. That it was injurious must be admitted, for it cannot be denied that the verdict of the jury may rest solely upon the testimony referred to, and the instruction of the court with relation thereto.

In the case of Linden Park Blood Horse Association v. Slate, 55 N. J. L. 557, the association, under an indictment charging it with keeping and maintaining a disorderly house, was convicted of the offence of keeping a commongaming house. This offence was not among the specifications of misconduct that were alleged to have made the house of the association a disorderly one. The question considered by the court was whether, under such an indictment, the conviction was legitimate. The court said: "The crucial test of the inquiry obviously is whether the specifications of the acts that constitute the house a disorderly one are necessary parts of the charge. That they are such is demonstrably clear. * * *By the constitution of our state, no person can be held to answer for a criminal offence 'unless upon the presentment or indictment, of a grand jury,' and, in order to effectuate this provision, it is indispensable that the charge

State v. Goodman.

*

92 N. J. L.

preferred by that body should be sufficiently descriptive, so as to clearly show a specific crimination. * * An indictment laying to the defendant the charge of keeping a disorderly house, by reason of it being kept as a bawdy-house, would not evince the purpose of the grand inquest to criminate him on the ground that his house was disorderly, from the circumstance that liquor was habitually sold in it, in violation of the law. Where, therefore, the grand jury has specified certain courses of criminal conduct as those that have rendered the defendant's house a common nuisance, and among such causes has omitted the practice of gambling, it is not perceived how it can be said that the criminal offence of keeping a public gaming house is founded, as the constitution requires, upon an accusation of the grand inquest."

The decision quoted from is that of the Court of Errors and Appeals. Later the same question was presented to this court for consideration and determination in the case of State v. De Lorenzo, SO N. J. L. 500, and we there held (following the Linden Park case) that the defendant could not be convicted of the offence of keeping a disorderly house, upon proof that it was a bawdy-house, or that liquor was there sold without license, unless these specific offences were mentioned in the recital of the various acts of misconduct set out in the indictment.

Under the rule laid down in the cited cases it is clear that the present conviction must be reversed, for it is, or, at least, may be, based upon matters of disorder which are not included in the specifications of the characteristics of the defendant's house in point of disorder which have been declared by the grand jury in its indictment.

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THE STATE, DEFENDANT IN ERROR, v. DAVID LENTZ, PLAINTIFF IN ERROR.

Argued June 4, 1918-Decided November 12, 1918.

A person who sets fire to a building of which he himself is the occupant, although not the owner, cannot be convicted of burning such building under section 124 of the Crimes act, which declares that "Any person who shall wilfully or maliciously burn, or cause to be burned, any barn, stable, or other building of another, not parcel of a dwelling house * shall be guilty of a high misdemeanor." The words "of another" are intended to indicate the occupancy not the ownership of the building.

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On error to Passaic Quarter Sessions.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and TRENCHARD.

For the plaintiff in error, Harry H. Weinberger.

For the state, Michael Dunn, prosecutor of the pleas.

The opinion of the court was delivered by

GUMMERE, CHIEF JUSTICE. The grand jury of Passaic county presented an indictment against David Lentz, the plaintiff in error, the fourth count of which charges that on the 11th day of June, in the year 1917, at the city of Passaic, "he did, with force and arms, a certain building of one Louis Goldberg, there situate, feloniously, wilfully and maliciously set fire to and burn, contrary to the form of the statute," &c. At the trial the state abandoned the first three counts of the indictment, and went to the jury on the fourth, with the result that a verdict of guilty was returned against him on the charge therein contained.

The undisputed testimony in the case was that the building which the defendant was charged with having burned was owned by Louis Goldberg; that Goldberg had rented it to the

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defendant; and that the latter used the lower floor as a liquor saloon, and was the sole occupant thereof at the time when the burning occurred. The principal question therefore which is presented for consideration by the writ of error is whether, under these facts, the defendant can be legally convicted of burning "a certain building of Louis Goldberg."

The indictment purports to charge the offence struck at by the one hundred and twenty-fourth section of our present Crimes act (Comp. Stat., p. 1786) which declares that "Any person who shall wilfully or maliciously burn, or cause to be burned, *** any barn, stable, or other building of another, not a parcel of a dwelling-house * *shall be guilty of a high misdemeanor;" and the answer to the question depends upon whether this building which was owned by Goldberg, but which was in the exclusive possession of the defendant, was the building "of another" within the meaning of the statute.

*

The one hundred and twenty-third section of the act declares that any person who shall wilfully or maliciously burn or cause to be burned the dwelling-house "of another" shall be guilty of arson. The one hundred and twenty-fifth section provides that any person who shall wilfully or maliciously set fire to any of the buildings "of another" which are designated in the one hundred and twenty-third and one hundred and twenty-fourth sections of the act, with intent to burn the same, shall be guilty of a misdemeanor. These three sections appear in the revision of the Crimes act of 1846 (R. S., p. 265) and have remained in the statute ever since, practically unaltered. In 1859 the Supreme Court had before it a case which presented the exact question now under discussion. State v. Fish, 27 N. J. L. 323. The indictment in that case charged the defendant with burning the barn of John Dunn, not parcel of a dwelling-house. The proofs showed that the title. to the building was in Dunn, but that the defendant was in the exclusive possession of it. The court held that the crime of arson does not depend upon the question of title, but of possession; that is to say, it is a crime committed against the person in the actual and immediate possession of the dwelling-house, without regard to the ownership thereof; and

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that therefore a person who sets fire to a dwelling-house of which he himself is the occupant, is not guilty of burning the dwelling-house "of another" within the meaning of section 30 (now section 123) of the Crimes act. The court then pointed out that the third of these sections, which made punishable an attempt to burn the dwelling-house of another (as well as attempts to burn buildings not used as dwellings) must also be construed as referring to the possession rather than to the ownership of the building; and considered that as the three sections were substantially parts of one and the same enactment, the words "of another" contained in the present one hundred and twenty-fourth section must be given the same meaning as that attributed to them in the other sections, that is, they must be held to refer to the possession rather than to the ownership of the building. Having reached this conclusion the court suggested that the omission from the statute of any provision punishing a person for willfully and maliciously burning a building of which he was in possession, but the ownership of which was in another, presented a situation which apparently called for action by the legislature.

The opinion was promulgated at the February term, 1859, the legislature then being in session, and almost immediately the present one hundred and twenty-sixth and one hundred and twenty-seventh sections were engrafted upon the statute, and have remained a part thereof ever since, without any change that is material to the question before us. The first of these sections makes any person who shall willfully or maliciously set fire to any building, &c., with intent to defraud an insurance company, whether the building be the property of the offender, or of any other person, guilty of a misdemeanor. The second section declares that any person who shall willfully and maliciously set fire to or burn any dwellinghouse, shop, &c., of another, in his (the offender's) possession, with intent to defraud any person whatever, shall also be guilty of a misdemeanor. Pamph. L. 1859, p. 367.

The correctness of the construction put upon this section of the statute in the case of State v. Fish, supra, has never

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