¶1delivered the opinion of the court.
¶2From the above statement, it will be seen, that the point for the adjudication of this court, arises from the action of the criminal court in quashing the indictment — for the omission ©f the circuit attorney to mention the name of the “human being” alleged to be in the dwelling house at the time that the defendant is charged to have committed the arson.
¶3The indictment is drawn under the 1st sec. of the 3rd article of the criminal code of 1845, which declares “that every person who shall set ñre to or burn, in -the night time, any dwelling house in which there *132shall be at the same time some human being, or who shall wilfully set fire to or burn, in the nighttime, any boat or vessel, in which there shall be at the time some human being, shall, upon conviction, be adjudged guilty of arson in the first degree.”
¶4The first count of the indictment is drawn under this section of the statute, and the only objection taken to this count, is the omission to ¡mention the name of the “human being” in the indictment.
¶5The defendant moved, by his counsel, to quash the indictment for this omission, which motion was sustained by the court — .the indictment was quashed ; thereupon the State brings the case here by appeal. .
¶6In my opinion there is no force in this objection — the identity of the human being is not in the least requisite to the validity of the indictment under the statute.
¶7The offence was complete without even the seeing the human being, or even the knowing that one was in the house by the defendant. His knowledge of such human being is no ways essential. If there be a human being in the house at the time the same was set fire to, that is sufficient; and it matters not the least who that human being is — it may be a child not yet baptised or christened, and without a name; — the name of the human being, or the identity of the human being, has nothing to do with the offence.
¶8In cases where the crime consists in an injury to the person or to the property of a person, there the name of such person becomes material; and the indictment must contain the name, or have an averment, that such person was unknown to the grand jury; and in general where it becomes a material circumstance and ingredient of the crime, that a third person must have something to do in the transaction, either actively or passively, there the name must be inserted.
¶9In this case, the offence only requires that some human being should ;>e in the dwelling house at the time; and the averment that some human being was at the time in the dwelling house, being in the words of the statute, is in my opinion sufficient.
¶10This 1st section of the 8d article does not declare that a person guilty of “arson” shall suffer such a penalty; but declares that every person who shall set fire to a dwelling house, in the night time, in which there shall be a human being, shall be guilty, &c.
¶11Here the facts which constitute arson in the 1st degree are set down and specified. An indictment then in the words in which the offence is created, is in general sufficient; and I see no reason to take the indictment out of the general rule.
¶12*133In my opinion, then, the court below committed error in sustaining the defendant’s motion to quash the indictment. The judgment below is therefore reversed, and this case is remanded.