¶1*673The opinion of the court was delivered by
¶2The indictment, alleges that the prisoner “ did set lire to and burn a certain building commonly known and called a sugar-house.”
¶3Sec. 4126, E.L., prescribes the penalty for burning a dwelling-house or its out-buildings. Sec. 4128 prescribes a less severe penalty for burning various other buildings specially named, “ or other house or building of another not constituting a dwelling house or its out-building sP
¶4The term sugar-house is not used in this section, therefore it is claimed that the indictment is bad for that it does not allege that the sugar-house charged to have been burned did not constitute a dwelling-house nor its out-buildings.
¶5We recognize the rule contended for by' the prisoner — that a proviso oran exception in a statute creating the offense must be negatived in pleading when they are descriptive of the offense and constitute a part of it; but the question is, Does this case come within that rule ? We think clearly not.
¶6These two sections impose different punishments for dis'inct species of the same general crime. A wilful and malicious burning must bo alleged in an indictment under either of them. In order to convict under the former, it would be necessary to allege that the building burned was a dwelling-house, etc., for that fact would aggrevate the crime and subject the party to the major punishment. But it is a rule that when there are several species of the same general crime, with more or fewer circumstances of aggravation, and they are subject to a gradation of punishments, it is not necessary in pleading to negative such circumstances. If only the mitigated offense is intended to be charged, it is sufficient to allege the facts that constitute it, omitting the circumstances that would aggravate it; in which case the offense charged will be deemed to be the mitigated offense, and to be punishable accordingly. And although circumstances of aggravation are alleged they need not be proved in order to a conviction for the mitigated offense. This last point was ruled in State v. Thornton, ante, 35. And a judg*674ment on an indictment for the mitigated offense would be a bar to an indictment charging the same offense with aggravation.
¶7The views here shortly expressed are fully sustained and much amplified in Commonwealth v. Squires, 1 Met. 258; Devoe v. Commonwealth, 3, Met. 316; Larned v. Commonwealth, 12 Met. 240; Commonwealth v. Hamilton, 15 Gray, 480; Commonwealth v. Reynolds, 122 Mass. 454.
¶8The respondent takes nothing by his exceptions, and the cause is remanded for trial.