McDonald v. Com.

• Decision Date: 09 June 1887
• Parties: McDONALD v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

4 S.W. 687

86 Ky. 10

McDONALD v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 9, 1887

Appeal from circuit court, Meade county.

The opinion sufficiently states the facts.

H. T Kendall and Lewis & Fairleigh, for appellant.

P. W Hardin, for appellee.

PRYOR C.J.

The appellant, McDonald, was tried and convicted in the Meade circuit court of the crime of house-burning; it being alleged in the indictment that the accused willfully and unlawfully set fire to and burned the Cedar Grove Church, the property of and belonging to the Methodist Episcopal Church South etc., contrary to the form of the statute in such cases made and provided. The statute provides "that if any person shall willfully and unlawfully burn a powder-house warehouse, store-house, stable, barn, or any house or place where wheat, corn, or other grain, fodder, hemp, cotton, wool, fruit, ice, hay, or straw is usually kept, or any other house whatever, or any stack, rick, or shock of hay, fodder, etc., pile of lumber, plank, rails, posts, hoop-poles, shingles, [and other property specifically mentioned,] he shall be confined in the penitentiary not less than one nor more than six years." Chapter 29. art. 7, Gen. St.

The unlawful and willful burning of a church was not arson in the offender by the rules of the common law. He was liable to fine and imprisonment only under an indictment for malicious mischief; and it is therefore urged that the burning of a church building, not being specifically mentioned, is not embraced by the statute; that after the enumeration of the various subjects of the offense, such as powder-houses, warehouses, barns, stables, storehouses, or places where grain, hemp, and cotton are kept, the words, "or any other house whatever," are restricted in meaning to buildings or objects of a like kind; and such is ordinarily the rule of construction in interpreting the meaning of a statute. The legislature in the list of offenses enumerated by this statute, and for which punishment is inflicted, seems to have omitted churches, school-houses, etc., but indirectly intended, by the general language used, to embrace all kinds of buildings; and while church edifices and school-houses should have been more prominent in the minds of the legislature, and therefore specially mentioned, than a barn, stable, or pile of lumber, at the same time it is unreasonable to suppose that the willful and unlawful burning of a stable or pile of lumber should be made an offense the punishment of which is confinement in the state prison at hard labor, while the burning of a house of public worship is only to be considered a misdemeanor, and the offender punished only by fine and imprisonment in the county jail.

This court in Wallace v. Young reported in 5 T. B. Mon. 155, held, under a similar statute, that the burning of a school-house was embraced by the words, ...