
90 S.E.2d 739 (1956)
STATE
v.
Jim LONG.
No. 579.
Supreme Court of North Carolina.
January 13, 1956.
*741 Chas. G. Rose, Jr., Fayetteville, for defendant, appellant.
William B. Rodman, Jr., Atty. Gen., Claude L. Love, Asst. Atty. Gen., and F. Kent Burns, Staff Atty., Raleigh, for the State.
PARKER, Justice.
It is an essential element of the common law crime of arson that the burning was done or caused maliciously. State v. Laughlin, 53 N.C. 455; State v. Porter, 90 N.C. 719; State v. McCarter, 98 N.C. 637, 4 S.E. 553; 4 Am.Jur., Arson, Sec. 2; 6 C.J.S., Arson, § 1; Wharton's Crim.Law, 12 Ed., Vol. 2, Sections 1051 and 1059; Miller's Crim.Law (Hornbook Series) p. 323; Curtis, The Law of Arson, Sections 1 and 68.
As a general rule an indictment for the common law crime of arson must allege that the burning was done maliciously. The omission to so charge is a fatal defect. D'Allessandro v. Tippins, 101 Fla. 1275, 133 So. 332; Kellenbeck v. State, 10 Md. 431, 69 Am.Dec. 166; Commonwealth v. Cooper, 264 Mass. 378, 162 N.E. 733; Jesse v. State, 28 Miss. 100; Maxwell v. State, 68 Miss. 339, 8 So. 546; Reed v. State, 171 Miss. 65, 156 So. 650; State v. Gove, 34 N.H. 510; State v. Mutschler, 55 N.D. 120, 212 N.W. 832; State v. Pedie, 58 N.D. 27, 224 N.W. 898; State v. Murphy, 134 Or. 63, 290 P. 1096; Tuller v. State, 8 Tex.App. 501; People v. Perez, 35 Puerto Rico 951; 6 C.J.S., Arson, § 18; 4 Am.Jur., Arson, Sec. 31; Wharton's Crim. Law, 12th Ed., Vol. 2, Sec. 1072; Curtis, The Law of Arson, Sec. 169; Bishop's Directions and Forms, Sec. 179. See State v. Anderson, 228 N.C. 720, 722, 47 S.E.2d 1, 2, where it is said the common law arson bill charged: "(1) The willful and malicious burning of the dwelling house of Willie Belle Cratch" et al.; and indictment in State v. Clark, 52 N.C. 167, in the original record in the clerk's office.
Arson, at common law, is an offense against the security of habitation, rather than the safety of the property. It was intended to protect the habitation of man, and the crime was not committed, unless the house was inhabited by some person. An uninhabited house is not subject to common law arson. We omit any discussion of a temporary absence, or of a man setting fire to his own dwelling house, as not relevant. State v. Clark, supra; State v. Gailor, 71 N.C. 88; 6 C.J.S., Arson, § 9; Curtis, The Law of Arson, Sections 3 and 13. See State v. Sarvis, 45 S.C. 668, 24 S.E. 53, 32 L.R.A. 647, 55 Am.St.Rep. 806.
The General Assembly of North Carolina has provided that any person convicted of common law arson shall suffer death, or life imprisonment if the jury so recommend at the time of rendering its verdict. G.S. § 14-58. However, the General Assembly has never defined common law arson. Therefore, the common law definition is still in force in this State. G. S. § 4-1.
The bill of indictment does not charge the offense of common law arson, because it does not charge that the act was *742 done maliciously, and because by charging that the house at the time of burning was unoccupied, it negatives the fact that the house was inhabited. State v. Clark, supra. See Cox v. State, 87 Fla. 79, 99 So. 126; Gilbreath v. State, 15 Ala.App. 588, 74 So. 723.
It is apparent from the Record that the case was tried below on the theory that the bill of indictment charged a violation of G.S. § 14-67. The judge so stated in his charge to the jury. The verdict was guilty as charged, and the judgment imposed by the court was as provided by G.S. § 14-67, and not as provided by G.S. § 14-58.
The relevant part of G.S. § 14-67 is: "If any person shall willfully attempt to burn any dwelling house, uninhabited house, * * * the property of another, he shall be guilty of a felony".
The indictment charges that the defendant unlawfully, wilfully and feloniously set fire to and burned the dwelling house of Mrs. Dan Wheatley, the same being unoccupied at the time of the burninga complete offense, not an attempt to commit this offense.
In G.S., Chapter 14, Criminal Law, Subchapter IV, Offenses against the Habitation and Other Buildings, Article 15, Arson and Other Burnings, G.S. § 14-58 through G.S. § 14-69, both inclusive, we find no statute condemning the unlawful and wilful burning of an uninhabited house, though G.S. § 14-67 makes the wilful attempt to burn an uninhabited house a felony. However, in the same chapter, Subchapter VI, Criminal Trespass, Article 22, Trespasses to Land and Fixtures, we find G.S. § 14-144, which is headed, "Injuring houses, churches, fences and walls", and reads in part as follows: "If any person * * * shall unlawfully and willfully burn, demolish, pull down, destroy, deface, damage or injure any church, uninhabited house, outhouse or other house or building not mentioned in such article; * * * every person so offending shall be guilty of a misdemeanor."
In our opinion, the bill of indictment properly charges the burning of an "uninhabited house" in violation of G.S. § 14-144.
What is the meaning of the words "uninhabited house" as used in that statute?
In State v. Clark, supra, the defendant was properly charged in the bill of indictment with the common-law crime of arson. The jury found a special verdict as follows: "That John F. Clark, the prisoner at the bar, is guilty, wilfully and maliciously, of burning the dwelling house in manner and form as charged in the bill of indictment; but that said dwelling house, when burned, was an uninhabited house, though it was built as a dwelling house, and had before that time been inhabited." This Court held that judgment of death could not be pronounced upon the special verdict of the jury, because that verdict found that the house was uninhabited at the time of the burning, but that judgment could be pronounced against the defendant as for a misdemeanor under Sec. 103, Ch. 34, Rev.Code 1854, which is identical in language with the part of G.S. § 14-144 quoted above. The Court said: "And we find the Legislature, in Section 103 of the same chapter of the Code, providing that the burning of `uninhabited houses' shall be a misdemeanor only. By a reference to this last section it will be perceived, by necessary implication from the context, that the uninhabited house spoken of is a house that is fitted for habitation, but is unoccupied at the time."
In State v. Rowland Lumber Co., 153 N.C. 610, 69 S.E. 58, 59, the Court said: "An uninhabited house `is a house that is fitted for habitation, but is unoccupied at the time.' State v. Clark, 52 N.C. 167."
The State's evidence is uncontradicted that no one lived in this house after the fire of 23 July 1954. Chief Snipes, the first witness for the State, testified that the house was so greatly damaged in the fire of 23 July 1954 "that it couldn't be lived in." Maurice Odom, the second witness for the *743 State, testified this house was destroyed by the fire on 23 July 1954. O'Daniels, the State's last witness, testified that only the right front room could be occupied, but that the roof of that room was burned and caved in, cold air would come into that room through the roof, and possibly rain, and that most of the windows of the room were burned or broken out. That this room could not be lived in by a normal person, without repairs. That a person down and out could live in this room, if necessary, but it would be like living in a cave. The State can derive no aid from the defendant's evidence.
In our opinion, and we so hold, the State has offered not a scintilla of evidence that this house after the fire of 23 July 1954 was fitted for habitation.
If it should be contended, which it is not, that the indictment charges a wilful burning of "other house or building not mentioned in such article" as set forth in G.S. § 14-144, the contention would be of no avail, because the State could not avoid a nonsuit on the facts.
In State v. Cuthrell, 235 N.C. 173, 69 S.E.2d 233, 234, the Court said: "The word `building' embraces any edifice, structure, or other erection set up by the hand of man, designed to stand more or less permanently, and which is capable of affording shelter for human beings, or usable for some useful purpose. See 4 Am.Jur., Arson, Sec. 16; Curtis, The Law of Arson, Sec. 28, p. 38; 6 C.J.S., Arson, § 6, page 725; Webster's New International Dictionary, 2nd Ed.; Funk & Wagnall's New Standard Dictionary."
The State has offered no evidence that this house after the fire of 23 July 1954 was fit for any useful purpose or habitation.
The defendant assigns as error the action of the lower court in overruling his motion for judgment of nonsuit made at the close of the State's evidence, and renewed at the close of all the evidence. In doing so the lower court committed error.
G.S. § 14-144 makes the unlawful and wilful burning of an uninhabited house a misdemeanor. G.S. § 14-67 makes the wilful attempt to burn an uninhabited house a felony. It would seem that these two statutes are fit subjects for legislative consideration. If the statute in respect to the burning of an uninhabited house was placed under Ch. 14, Article 15, Arson and Other Burnings, instead of under Article 22, Trespasses to Land and Fixtures, it would facilitate research, and prevent its being overlooked.
The defendant's motion for judgment of nonsuit will be sustained.
Reversed.
