On appeal from Superior Court, Appellate Division, whose opinion is reported at 28 N.J. Super. 491.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Justice Oliphant. The opinion of the court was delivered by William J. Brennan, Jr., J.
A question is raised here under the double jeopardy provision of the 1947 Constitution, Art. I, par. 11, which reads, "No person shall, after acquittal, be tried for the same offense."
Two indictments are involved. The first charged Midgeley with arson under R.S. 2:109-1 for the burning of the "dwelling house of one Aaron Shurman." He was acquitted thereunder by direction of the court at the close of the State's
case at the trial. The acquittal was directed because the State's proofs showed that the house was and for two years had been unoccupied, and the trial judge was of the opinion that arson under the statute was not committed "unless the property was inhabited by some person" when burned.
Midgeley was thereafter indicted under R.S. 2:109-3(b) which in pertinent part provides that "any person who shall willfully or maliciously set fire to * * * with intent to burn: * * * b. any dwelling house * * * or other house or building of another * * * shall be guilty of a misdemeanor." This indictment refers to Shurman's house as a "certain building of one Aaron Shurman, to wit, an unoccupied dwelling house of the said Aaron Shurman." Midgeley interposed a plea of autrefois acquit to the new indictment. The State conceded that the proofs which would be offered to support the indictment would be identical with the proofs offered to support the first indictment. The trial judge sustained Midgeley's plea and dismissed the indictment.
The State appealed and the Appellate Division reversed. State v. Midgeley, 28 N.J. Super. 491 (1954). The Appellate Division concluded that Midgeley was never put in jeopardy under the first indictment if it was not legally possible to convict him thereunder in light of the State's proofs and held that prosecution under the second indictment was therefore not barred. Midgeley appeals to this court of right pursuant to R.R. 1:2-1(a).
The statutory offenses captioned "Arson and other burnings" under chapter 109 of Title 2 of the Revised Statutes, R.S. 2:109-1 to R.S. 2:109-6, since superseded by N.J.S. 2 A:89-1 to 6, have essentials notably different from the essentials of the common law crime of arson. The common law felony was a crime against another's habitation, not against another's property but against his life and safety at his place of abode, that is, his dwelling house. 3 Burdick, Law of Crime (1946), p. 2 et seq. For example, it was not arson at common law for one to burn down his own home, State v. Fish, 27 N.J.L. 323 (Sup. Ct. 1859). But the statutory offenses under R.S. 2:109-1, 2 and 3 which
originated in sections 30, 31 and 32 of the Crimes Act of 1846 (Rev. Stat. 1847, p. 265), also include the burning of or attempts to burn non-dwellings and other property, and, as amended by L. 1919, c. 106, p. 257, embrace not only the act of the accused in burning or attempting to burn the dwelling or other building "of another" but also his own dwelling or other building.
Judicial interpretations of the original 1846 statute read into it a significance in the fact of occupancy or possession of the burned structure comparable to the emphasis upon the element of habitation in the common law offense. If the accused was charged with burning or attempting to burn the building of a named owner, dwelling house or not, and it appeared that the building was at the time in the actual occupancy or possession of some one else and not of the owner, the indictment was not sustained, State v. Fish, supra; State v. Lentz, 92 N.J.L. 17 (Sup. Ct. 1918). The words "of another" in the statute were construed in that circumstance to indicate the occupancy and not the ownership of the building, State v. Duelks, 97 N.J.L. 43, 52 (Sup. Ct. 1922). It is to be noted, however, that no decision under the statute prior to its amendment in 1919 dealt with the construction of the statute in the situation in which the building was unoccupied at the time of the burning. In such case a persuasive argument may be made that the owner has the exclusive right to possession and that the decisions referred to did not go so far as to hold that an indictment for the burning of the owner's unoccupied building did not charge the burning of the building "of another."
But, however the statute is to be interpreted in that regard prior to the 1919 amendments extending the offenses to the act of the accused in burning or attempting to burn a building "whether it be his own or that of another," under the amended statutes the crime of burning or attempting to burn the building of a named owner is proved despite the absence of proof that the owner was in the actual and immediate possession or ...