¶1Concurring Opinion
¶2I concur in the result reached in Chief Justice Emmert’s opinion for the reason that the proof was insufficient to establish the corpus delicti.
¶3However, I do not concur in that part of the opinion which holds that the house trailer herein involved was not a “dwelling-house” within the meaning of the Acts of 1927, ch. 44, §1, p. 122, being §10-301, Burns’ 1942 Replacement, for the following reasons:
¶4First: There is nothing in the first degree arson statute which indicates that the phrase “dwelling-house” is used in any particular or technical sense. Therefore, it is to be taken and accepted in its ordinary and usual meaning. R. L. Shirmeyer, Inc. v. Ind. Revenue Bd. (1951), 229 Ind. 586, 591, 99 N. E. 2d 847; Massey v. Dunlap (1896), 146 Ind. 350, 358, 44 N. E. 641; State v. Mears (1938), 213 Ind. 257, 259, 12 N. E. 2d 343.
¶5Section 1 of the arson statute defines the crime of first degree arson and provides as follows:
“Any person who wilfully and maliciously sets fire to or burns, or causes the setting of fire to or the burning, ... of any dwelling-house . . . finished or unfinished, occupied or unoccupied, . . . such being the property of another; . . .” Acts 1927, *502ch. 44, §1, p. 122, being §10-301, Burns’ 1942 Replacement, supra.
“At common law arson was the malicious and voluntary or wilful burning of another’s house, or, as it was sometimes stated, the wilful and malicious burning of the dwelling house of another. It was an offense against the security of the habitation and had reference to the possession rather than the property. It was considered an aggravated felony and of greater enormity than any other unlawful burning because it manifested in the perpetrator a greater recklessness and contempt of human life than the burning of a building in which no human being was presumed to be.” 4 Am. Jur., Arson, §2, p. 87.
See also: 6 C. J. S., Arson, §2 (a), p. 719.
¶6This court has held that burglary is an offense not against mere property, but against another’s habitation, the gist of the crime being the felonious invasion of a man’s dwelling. Carrier v. State (1949), 227 Ind. 726, 731, 89 N. E. 2d 74.
¶7Both burglary and arson being offenses especially against the habitation—the security of the home—the gist of the crime of first degree arson as defined in §10-301, supra, is the felonious destruction of a man’s dwelling—an offense against the security of his home.
¶8The clear intent of the legislature as evidenced by §1 of the arson statute was to protect a man’s home or place of habitation from wilful and malicious destruction by fire.
¶9Second: Webster defines “dwelling-house” as a house occupied as a residence.
¶10“House” is defined as “A structure intended or used for human habitation; especially a human habitation which is fixed in place and is intended for the private occupation of a family or families.” Webster’s New International Dictionary, 2d ed., p. 1040.
¶11*503A “dwelling-house” is a building occupied by a family as a place of residence. Black’s Law Dictionary, 3d ed., p. 632.
¶12In defining a “dwelling-house” as used in the burglary statute
“ ‘The word “dwelling” imports a human habitation.’
“ ‘The character of the house is generally immaterial if it is occupied as a dwelling.’ ”
¶13In Gaines v. State (1921) 191 Ind. 262, 132 N. E. 580, the appellant was charged with breaking and entering into the dwelling-house of . . . and, at page 265 of 191 Ind., this court said:
“In the case of Bell v. State (1866), 20 Wis. 630, which was a prosecution for burglary and larceny, it is said, ‘The words “the dwelling house of Oscar F. Ferris,” mean that the building broken and entered was his place of residence,. .
¶14In deciding that a delivery wagon, from which beer was dispensed at an old settlers’ meeting, was not a house within the meaning of Section 5320, R. S. 1881, this court in Schilling v. State (1888), 116 Ind. 200, 18 N. E. 682, at p. 205 of 116 Ind., said:
“The statute under consideration, while it includes all sorts of houses, doubtless has more direct reference to business-houses. But a house must be some sort of a building or inclosed structure. It has been held that a statute punishing the keeping of houses of ill-fame may be violated by maintaining a flat-boat kept on a river, but it was so held because upon the boat was a cabin—an inclosed structure, furnished and protected from the water, and in which men and women ate, slept and lived. The
*504cabin was a dwelling-house because it was an inclosed structure in which persons lived. State V. Mullen, 85 Iowa 199.” (My italics.)
¶15The Supreme Court of New York in People v. Van Blarcum (1806), 2 Johnson’s Reports 105, considering the phrase “dwelling-house” as used in an indictment for arson, said:
“The court will not inquire into the tenure or interest, which such person has in the house burnt. It is enough that it was his actual dwelling at the time.”
¶16In determining the meaning of “dwelling-house” as used in an indictment for arson, the Supreme Court of Mississippi in State v. Stringer (1913), 105 Miss. 851, 63 So. 270, 271, said:
“A ‘dwelling-house’ is a house in which human beings ‘usually stay, lodge, or reside.’ ”
¶17As used in the Michigan arson statute the term “dwelling-house” has been construed to mean any house intended to be occupied as a residence, even though not occupied at the time of burning. People v. Losinger (1951), 331 Mich. 490, 50 N. W. 2d 137, 142, 143.
¶18A railroad car, withdrawn from service and used exclusively for the purpose of habitation, has been held to be a dwelling-house within the meaning of that term as used in a burglary statute. Gibbs v. State (1910), 8 Ga. App. 107, 68 S. E. 742.
See also:
28 C. J. S., Dwelling or Dwelling House, pp. 599, 600, for further definitions of dwelling-house.
¶19The Fifth Circuit Court of Appeals in Aetna Life Ins. Co. v. Aird (1939), 108 F. 2d 136, 125 A. L. R. 1436, in determining whether or not a trailer was a “building in the sense of a dwelling” within the terms of an insurance policy, said:
*505“Thus, what had been built for a dwelling or place to live, movable from place to place, was at rest, and was being occupied as a dwelling, as completely as if, instead of a trailer, it were a ready cut or knocked-down house, transported to the field, either set up, or in units for setting up.
“As such, it was certainly a building, in the sense of a dwelling, 12 C. J. S., Building, p. 378, Rouse v. Catskill & N. Y. Steamboat Co., 59 Hun 80, 13 N. Y. S. 126; Neekamp v. Huntington Chamber of Commerce, 99 W. Va. 388, 129 S. E. 314. It was too, a building, in the generic sense of something built or constructed for use as a shelter or habitation for man or beast. If instead, of a completed trailer, the material which made it up, had been assembled on the lease, and there built into a dwelling or habitation for deceased’s use, no one could, we think, contend that the resulting structure was not a building. The fact that it was completed before transportation and equipped with wheels to roll it, does not, we think, at all change the undisputed fact that in every essential respect, it was built for and was being used by deceased, as a shelter and habitation, in short, a dwelling.”
¶20In Kimsey v. City of Rome (1951), 84 Ga. App. 671, 67 S. E. 2d 206, it was held that a trailer equipped as a dwelling and connected with electric lines, water mains and sewers, was a dwelling-house within the restrictions of a zoning ordinance.
¶21In Lower Merion Tp. v. Gallup (1946), 158 Pa. Super. 572, 46 A. 2d 35, it was held that house trailers mounted on boxes or jacks and connected with water and electric lines and remaining within the township for more than 30 days were dwelling houses within the meaning of the township building code ordinance. At page 36 of 46 A. 2d, it is said:
“A house trailer is simply a mobile house. It is as much a dwelling as any house which is built on a foundation and therefore not mobile.
“To say that these were not dwelling houses is an attempt to fictionalize a reality. They were used *506and intended to be used as homes, and were as much dwellings as any similarly sized structures could be.”
See also:
Appeals of Palumbo (1950), 166 Pa. Super. 557, 72 A. 2d 789.
¶22The evidence in the case at bar discloses that a house trailer in which a man was living was burned on June 4, 1954. Jack Weber, a witness for the state, testified as follows:
“Q. What was burning when you arrived?
“A. This trailer.
“Q. Do you mean an automobile trailer?
“A. It was a house trailer.
“Q. House trailer?
“A. Built up on chocks of wood.
“Q. Not attached to the realty? It was not attached to the real estate, to the land?
“A. It was attached by blocks.
“Q. What kind of situation was it? I want it described to me.
“A. All I could see what was left of the trailer was that it was an aluminum trailer.
“Q. A trailer ordinarily has axles to operate on?
“A. In other words, the wheels had been taken off. It had been blocked up and was setting on blocks.”
¶23The owner of the trailer, a witness for the state, testified in part, as follows:
“Q. You did own that property out there? [The house trailer.]
“A. Sure.
“Q. Tell the court where that is located?
“A. Where it was located?
“Q. Yes.
“A. Right across from the Waterworks Road.
“Q. Just how did you have this piece of property placed out there?
“A. I pulled it out in there on wheels. I pulled the wheels out. I had an automobile chassis, and it was too heavy so I set it on concrete *507blocks. I was intending to put wheels under it.
“Q. Did you set it on blocks ?
“A. Yes.
“Q. Were you living in the trailer?
“A. I was.
“Q. You were making that as your home, is that correct?
“A. Yes, sir.
“Q. It was burned on the night of June 4, or early morning?
“A. Yes, sir.
“Q. Was the trailer equipped with a bed?
“A. Fully equipped with all my furniture and clothes in it.
“Q. You had your furniture and clothes in it?
“A. Yes, sir.
“Q. Was that destroyed?
“A. Everything burned to the ground.
“Q. At the time this trailer burned, it was placed on the premises?
“A. Right.
“Q. It couldn’t be moved at that time without additional work being done to it?
“A. Another set of wheels put under it.
“Q. Did it have axles on it?
“A. Yes, sir, the axles was with the chassis.
“Q. In order to move it you would have had to jack it off the blocks and put wheels on it? “A. Put wheels on it and take the blocks out.
“Q. That was the condition it was in at the time it was burned?
“A. Yes, sir.
“Q. You were living in it at that time?
“A. Yes, sir, I was.
“Q. Had your furniture and bed in there?
“A. Yes, sir.”
¶24Although the owner of the trailer was paying no rent for the use of the land on which the trailer was situated, he had permission from the person then in possession of the land to locate the trailer thereon.
¶25The evidence is undisputed that the trailer here in question was a house-trailer—an “enclosed structure” *508occupied by the owner as his residence and place of habitation at the time of the fire.
¶26Third: The evidence in this case clearly discloses that the house trailer in question was, at the time it was burned, withdrawn from its use as a motor vehicle within the meaning of the Motor Vehicle Act, and was being used exclusively as a place of human habitation and occupied by the owner as his sole and only dwelling. His clothes, bed and other pieces of furniture were there, and he slept there.
¶27It is not material that the house trailer was constructed of aluminum. Many dwellings are now of aluminum construction. Neither was it material that the wheels could be replaced under it, and it then could be pulled away by an automobile or other motor vehicle. It was a substantial enclosed structure built for, and being used by, the owner as a dwelling at the time it was burned. It may or may not have been personal property. I think that is not material in this case.
¶28Cf: Schilling v. State (1888), 116 Ind. 200, 18 N. E. 682, supra. The determining factor here is whether or not the trailer was a house or other enclosed structure in which a person or persons lived at the time it was burned.
¶29The house trailer here in question was, at the time of its burning, the only home or place of habitation which the owner had. It was as much his “dwelling-house” as if it had been the most palatial residence in Indiana.
¶30In my opinion the property here burned was of like kind and class as that specifically mentioned in §10-801, supra, and its wilful and malicious burning would clearly constitute the crime of first degree arson.
¶31See: Ford v. State (1887), 112 Ind. 373, 14 N. E. 241; Jordan v. State (1895), 142 Ind. 422, 41 N. E. 817.
¶32*509I recognize that the act here under consideration is a criminal and penal statute and must be strictly construed against the state and in favor of a defendant where construction is necessary. However, the rule which should here be applied as required by the circumstances in this case, is ably stated in Short v. State (1954), 234 Ind. 17, 122 N. E. 2d 82, 85, as follows:
¶33“Notwithstanding the rules noted above, the construction of penal statutes should not be wantonly narrowed so as to exclude the cases that are fairly covered by them. Caudill v. State (1946), 224 Ind. 531, 534, 69 N. E. 2d 549, supra. A criminal statute should be interpreted so as to give efficient operation to the expressed intent of the legislature, if reasonably possible. Morris v. State, (1949), 227 Ind. 630, 632, 88 N. E. 2d 328; State v. Griffin (1948), 226 Ind. 279, 284, 79 N. E. 2d 537, and cases there cited.”
¶34NOTE.—Reported in 129 N. E. 2d 121.
¶35. Acts 1941, ch. 148, §4, p. 447, being §10-701 (a), Burns’ 1942 Replacement.