State v. Gulley

266 S.E.2d 8 (1980)

STATE of North Carolina v. James Clarence GULLEY.

No. 7911SC1125.

Court of Appeals of North Carolina.

May 20, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Elisha H. Bunting, Jr., Raleigh, for the State.

DeMent, Redwine & Askew by Johnny S. Gaskins, Raleigh, for defendant-appellant.

ARNOLD, Judge.

"`(A) defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment.'" State v. Cooper, 275 N.C. 283, 286, 167 S.E.2d 266, 268 (1969). Defendant was charged under G.S. 14-62 with burning an "uninhabited dwelling house." The evidence presented at trial showed that Janice Watson, her son, and Roger Watson used the mobile home which was burned as their place of residence, and that they were temporarily absent, spending the Thanksgiving holiday in another state, at the time of the fire. Defendant contends that this evidence shows that the dwelling burned was inhabited, *9 though unoccupied at the time of the fire, and that consequently there is a fatal variance between allegation and proof.

At common law the burning of the dwelling of another was the crime of arson, State v. Cuthrell, 235 N.C. 173, 69 S.E.2d 233 (1952), and this common law definition remains in effect in North Carolina. State v. Arnold, 285 N.C. 751, 208 S.E.2d 646 (1974). Common law arson results from the burning of a dwelling even if its occupants are temporarily absent at the time of the burning. 5 Am.Jur.2d, Arson & Related Offenses § 17; see Session Laws 1979, c. 760, s. 5 (amending G.S. 14-58 effective 1 July 1980); State v. Blizzard, 280 N.C. 11, 184 S.E.2d 851 (1971). By statute the legislature has made criminal other types of burning, see G.S. 14-59 et seq., and it is under one of these statutes, G.S. 14-62, that defendant is charged. G.S. 14-62 is entitled "Burning of churches and certain other buildings" and applies to the burning of uninhabited houses, churches, warehouses, offices, barns, etc. Since a dwelling which is merely temporarily unoccupied falls within the definition of arson, and since uninhabited houses are grouped in G.S. 14-62 with other structures in which people do not reside, we find that the legislature meant something more than the temporary absence of the occupants when it created the separate crime of burning an "uninhabited" house.

Few North Carolina cases have addressed the meaning of "uninhabited," but in the early cases of State v. Clark, 52 N.C. 167 (1859) (per curiam), the court agreed that a structure which "was built for a dwelling-house, and had once been occupied as such, but was untenanted at the time of the burning," was an uninhabited house. The court pointed out there that the higher penalty for arson resulted from "the peculiar jealousies of our people for protecting the house which is the home of the citizen." Id. at 168 (emphasis added). More recently, in the case of State v. Long, 243 N.C. 393, 90 S.E.2d 739 (1956), the court noted that an uninhabited house is not subject to common law arson, and indicated that the temporary absence of the residents was a different subject.

Because we find that the temporary absence of the Watsons from their dwelling did not make the dwelling an "uninhabited house" within the meaning of G.S. 14-62, the evidence in this case did not establish defendant's guilt of the crime with which he was charged. Defendant was entitled to have his motion for nonsuit granted.

Reversed.

HEDRICK and ERWIN, JJ., concur.