¶1 (after stating the facts). There is error. The case of State v. Mason, 13 Ired., 341, is decisive of this case. It was there held that in an indictment, that under the statute of ÍSIC-Y, ch. 70, for injury to a dwelling house, of which a lessee, his time yet unexpired, has the actual possession, the indictment, if it can lie at all, must state the property to be in the lessee. But the act does not embrace the ease of destruction or damage to buildings, &c., by the owner himself, and in law the lessee is the owner, during the continuance of his term. The act of 1846-N, ch. 70, is substantially and almost literally the same with the section 1062 of The Code, under which the defendant is indicted. He was the lessee of Mrs. Caldwell, and his lease at the time of the removal of the sash was unexpired. The case falls directly within the decision of State v. Mason.
¶2 There was error. Let this be certified to the Superior Court of Burke that a venire de novo may be awarded the defendant.
¶3 Error. Reversed.