¶1Tbe defendant was convicted at tbe June term of the district court for the county of Bingham of the crime of an attempt to commit arson of the second degree, and sentenced to confinement in state prison for two years, from which judgment and sentence defendant appeals to this court. The only errors charged by defendant, which we deem it important to consider, are in the giving by the court of certain instructions.
¶2The giving of instruction No. 3 by the court is charged as error. That instruction was as follows: “Any building which has usually been occupied by any person lodging therein at night is an inhabited building, within the meaning of this chapter.” There was no error in this instruction. The building attempted to be burned by defendant was the jail of the city of Idaho Falls, and was at the time occupied by defendant and another as prisoners. The instruction asked by defendant, and refused by the court, to the effect that the town (city in this case) was incapable of owning property, was properly refused. It is urged by counsel for defendant, in his brief, that there is no such offense known to the statutes of Idaho as “an attempt to commit arson.” This exception does not appear in any bill of exceptions or assignment of errors, and, if counsel had taken the trouble to read section 7235 of the Revised Statutes of Idaho, it would probably not have appeared in his brief. The judgment of the district court is affirmed.