McDade v. People

• Decision Date: 29 January 1874
• Citation: 29 Mich. 50
• Court: Michigan Supreme Court
• Parties: Patrick McDade v. The People

29 Mich. 50

Patrick McDade v. The People

Supreme Court of Michigan

January 29, 1874

Submitted on Briefs January 14, 1874

Error to Alpena Circuit.

Information for an attempt to cause a building to be burnt. Judgment set aside and prisoner discharged.

Judgment and verdict set aside, and the plaintiff in error discharged from further prosecution on this information.

Atkinson & Hawley, for plaintiff in error.

Byron D. Ball, Attorney General, for the People.

Graves Ch. J. Campbell, J., concurred. Cooley, J. dissenting. Christiancy, J., did not sit in this case.

OPINION

Graves Ch. J.

This is a writ of error to the circuit court for the county of Alpena.

The plaintiff in error was convicted and sentenced to the State prison upon the following charge, as embodied in the second count of the information filed against him by the prosecuting attorney:

"And said prosecuting attorney further gives said court to understand and be informed that heretofore, to wit: on the first day of May, in the year of our Lord one thousand eight hundred and seventy-two, at the city of Alpena, in said county, Patrick McDade did willfully, feloniously and maliciously solicit and invite one Patrick Blaney, unlawfully and feloniously to set fire to, and burn a certain building, to wit: the warehouse there situate of Lorenzo M. Mason, Charles E. Mason and Benjamin T. Luce, and did then and there, for the purpose aforesaid, furnish said Blaney with a large quantity of oil, to wit: one pint, and a large quantity of matches, to wit: ten matches, towards the commission of said offense, whereby and by means of the premises the said Patrick McDade did attempt to cause said building to be burned, contrary to the statute in such case made and provided."

It was claimed in the court below, and is now insisted upon here, that the facts set forth in this count do not constitute in law an indictable offense. The charge in the information was framed under § 7557, Comp. L., which reads as follows:

"Every person who shall set fire to any building mentioned in the preceding sections" (and a warehouse is such building), "or to any other material, with intent to cause any such building to be burnt, or shall by any other means attempt to cause any building to be burnt, shall be punished by imprisonment in the State prison not more than fifteen years, or by fine not exceeding one thousand dollars, and imprisonment in the county jail not more than one year."

On recurring to the information it will be observed that the count on which the conviction was had contains no averment that Blaney, the person alleged to have been solicited to commit the act of setting fire, took any step toward the execution of that act, or did any act whatever which might inculpate the plaintiff in error as accessory.

The charge in the information is made to rest entirely at last upon McDade's conduct in soliciting Blaney to burn the warehouse. The additional circumstance introduced, that he also furnished oil and matches, is not such an one as can be considered an essential ingredient of the substantive offense intended to be set forth. The addition of this fact in no manner helps to fill up the measure required by the statute, and the charge would be as valid without it as with it. If the provision relied on will support such a charge as that actually made, it would equally well support one based on the solicitation, and not attended by the incidents introduced as to the furnishing of oil and matches.

The question, then, is whether this law will warrant a charge based on solicitation. It is a well settled general rule, and one especially applicable in the interpretation of statutes which define crimes and regulate their punishment, that general words are to be restrained to the matter with which the act is dealing, and that if it be dealing with specific things or particular modes only, the general words must be limited to such things or modes, except when it is apparent that the Legislature intended by the general words to go further.--American Transportation Company v. Moore, 5 Mich. 368; Hawkins v. The Great Western R. W. Co., 17 Mich. 57; Matter of the Ticknor Estate, 13 Mich. 44; Phillips v. Poland, L. R., 1 C. P., 204; Hall v. The State, 20 Ohio 7; Daggett v. The State, 4 Conn. 60; Chegaray v. The Mayor, 3 Ker. 220; 1 Bishop, Cr. L., Sec. 149; Dwarris, 621.

This rule is now invoked to show that the statute in prescribing what should constitute an indictable attempt to cause a building to be burnt, contemplated the employment of some physical means and not merely the soliciting of a third person to set the fire. The counsel for the plaintiff in error argues that the previous members of the section deal with the physical act of firing the building itself, or of firing some other material with the intent that the building as a consequence shall be burnt, and that the succeeding general expression counted on by the prosecution, "or shall by any other means attempt to cause any building to be burnt," must be understood as intending some means of the same nature, some physical act either personally by the party himself or through another directed to the end sought.

The attorney general argues that the first and specific portion of the section covers every possible direct and indirect mode of attempt to cause a building to be burnt, excepting an attempt consummated by solicitation, and that therefore in order to give the general clause in the latter part of the section any meaning and operation it is indispensable to read it as explicitly applying to the single fact of malicious solicitation to burn.

Without pausing to adduce illustrations to impugn this position of the prosecution touching the scope of the specific provisions, it is sufficient to say that it cannot be maintained that the particular clauses in the first part of the section include every possible mode other than that consisting of personal...