People v. Reed
| Decision Date | 28 August 1968 |
| Docket Number | No. 2,Docket No. 3036,2 |
| Citation | 163 N.W.2d 704,13 Mich.App. 75 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Michael REED, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Robert L. Segar, Flint, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Robert F. Leonard, Pros. Atty., Genesee County, Donald A. Kuebler and Paul G. Miller, Jr., Asst. Pros. Attys., Flint, for appellee.
Before QUINN, P.J., and T. G. KAVANAGH and CORKIN *, JJ.
Defendant was convicted of burning a dwelling house; C.L.1948, § 750.72 (Stat.Ann.1962 Rev. § 28.267). It was defendant's contention throughout the trial and now on appeal that the struture burned was not a dwelling house within the meaning of the statute.
The statute under which defendant was convicted provides as follows:
'Any person who wilfully or maliciously burns any dwelling house, either occupied or unoccupied, or the contents thereof, whether owned by himself or another, or any building within the curtilage of such dwelling house, or the contents thereof, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 20 years.'
The structure burned was located in a residential district in the city of Flint. In the past the owner had rented the property, but for a period of approximately 1 1/2 years prior to the fire on May 28, 1966, the property was unoccupied.
The evidence and exhibits reveal that the structure was in a dilapidated condition. There was running water in the kitchen but there was no bathroom or washing facilities and the interior was in a poor state of repair. During the period, prior to the fire, when the building was unoccupied a vandalism problem developed and by order of the fire department the building had been boarded up. However, it had not been condemned, because as far as the fire marshal was concerned, although considered uninhabitable, the house could be restored to habitability by making improvements.
Although the owner testified that she was 'getting it ready' for her daughter, nothing had been done to restore the property for several months before the fire.
A consideration of all the evidence would lead to the conclusion that the structure in question was a former habitation that could be or was intended to be made habitable in the future, but that at the time of the burning was not habitable. This was a structure that had not been lived in for some months and there was no contemplation of living in it in the future in its present state of repair.
In People v. Losinger (1951), 331 Mich. 490, 50 N.W.2d 137, 44 A.L.R.2d 1449, the court had occasion to consider the question of whether a structure was or was not a dwelling house within the meaning of the statute in question. In Losinger the structure was a hunting and fishing cabin which was stocked and provisioned for immediate use and which was used from time to time by the owner and his guests. It was a structure habitable in its present condition although occupied intermittently, and the court determined it to be a dwelling house within the meaning of the statute.
The Losinger case is annotated in 44 A.L.R.2d 1456 under the heading 'Vacancy or nonoccupancy of building as affecting its character as 'dwelling' as regards arson.' In considering the question generally the following statement is made on pages 1457, 1458:
'Whether or not the vacancy or nonoccupancy of a particular building will affect its status as a 'dwelling' in connotations pertaining to the crime of arson depends upon the circumstances giving rise to such vacancy or nonoccupancy. Speaking generally, an unfinished or incomplete building which has not yet been occupied will not be regarded as a 'dwelling' even though designed as a dwelling house and destined to be so used on completion. Conversely, where a building originally used as a dwelling house has been abandoned for such purposes or where such a building has been without a tenant or occupant for a prolonged period, it will not be regarded as...
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...that the common-law definition of dwelling house applied because its statute did not define the "word of art." Id. In People v. Reed, 13 Mich.App. 75, 163 N.W.2d 704 (1968), the Court of Appeals was called upon to determine whether a structure that was burned was a dwelling place. In that c......
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