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dicted for a misdemeanor, Buller, J., directed an acquittal, on the ground, that as the bouses of others had been burned, the offence amounted to felony. 2
Isaac's case, 2 East, P. C. 1031. See also Probert's case, Id. 1030.
[ *247] *By statute.] The various offences of burning houses and other property are now for the most part provided against by various statutes; the evidence upon indictments under which varies in several respects from the evidence under an indictment at common law.
Setting fire to a dwelling-house, any person being therein.] By the 7 Wm. 4 and 1 Vict. c. 89, repealing the 7 and 8 Geo. 4, c. 30, it is enacted, (s. 2), “ that whoever shall unlawfully and maliciously set fire to any dwelling-house, any person being therein, shall be guilty of felony, and being convicted thereof, shall suffer death."
This sentence may be recorded under the 4 Geo. 4, c. 48, s. 1, ante, p. 224.
Under the 7 Wm. 4 and 1 Vict. c. 89, s. 2, the prosecutor must prove: 1st. The setting fire (see post, p. 248). 2d. To a dwelling-house, which word seems to be used in the restricted sense given to it by the 7 and 8 Geo. 4, c. 29, s. 13, (see post, tit. Burglary,) and not to include all such buildings as would come within the common law definition of a dwelling-house, the object of the clause apparently being to award a heavier punishment where life is endangered ; see Matthew's New Crim. Stat. p. 57: 3d. That the party named in the indictment, was in the dwellinghouse when it was set on fire.
Setting fire to houses, &c.] By the 7 Wm. 4 and 1 Vict. c. 89, s. 3, (re-enacting the 7 and 8 Geo. 4, c. 30, s. 2, with some slight variations, but modifying the punishment) “whosoever shall unlawfully and maliciously set fire to any church or chapel, or to any chapel for the religious worship of persons dissenting from the united church of England and Ireland; or shall unlawfully and maliciously set fire to any house, stable, coachhouse, outhouse, warehouse, office, shop, mill, malthouse, hopoast, barn, or granary, or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them respectively shall then be in the possession of the offender or in the possession of any other person, with intent thereby to injure or defraud any person, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years."
By s. 12, “where any person shall be convicted of any offence punishable under this act, for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or imprisoned and kept to hard labor, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, or imprisonment with hard labor, not exceeding one month at any one time, and not exceeding three months in any one year, as to the court in its discretion, shall seem meet."
Upon an indictment on this section, the prosecutor must prove, *1, The act of setting fire, 2, to the house or other buildings specified, and, 3, the intent to injure or defraud the party mentioned in the indictment.
Proof of the setting fire, &c.] The act of " setting fire” to the property must be proved. The words " set fire” were used in the stat. 9 Geo. 1, c. 22, and Mr. East observes, that he is not aware of any decision which has put a larger construction on those words than prevails by the rule of the common law. 2 East, P. C. 1020. And he afterwards remarks, that the actual burning, at coinmon law, and the "setting fire," under the statute, in effect mean the same thing. Id. 1033, ante, p. 244. The prisoner was indicted (under 9 Geo. 1) for setting fire to an outhouse, commonly called a paper-mill
. It appeared that she had set fire to a large quantity of paper, drying in a loft annexed to the mill, but no part of the mill itself was consumed. The judges held that this was not a setting fire to the mill within the statute. Taylor's case, 2 East, P. C. 1020; 1 Leach, 49,
To constitute a setting on fire, it is not necessary that any flame should be visible. Stallion's case, 1 Moo. C. C. 398 (a), post, p. 251. This decision was come to upon the the words “set fire” in the 7 and 8 Geo. 4, c. 30, s. 2, which are repeated in the recent statute.
With regard to the question, how far it is necessary to prove that the prisoner himself set fire to the property with his own hand ? Tindal, C. J., in his charge to the grand jury, at Bristol, makes the following remarks: “ You will inquire, first, whether the prisoner set fire to the premises himself; in such case no doubt of his guilt can exist; and if the proof falls short of this, you will then consider whether he was jointly engaged in the prosecution of the same object with those who committed the offence. If by his words and gestures he incited others to commit the felony, or if he was so near the spot at the time, that he, by his presence, wilfully aided and assisted them in the perpetration of the crime, in either of these cases, the felony is complete, without any actual manual share in its commission.” 5 Car. and P. 266, (n.) (b).
If the indictment alleges that the offence was committed in the nighttime, and it appears to have been committed in the day-time, it is no variance. Minton's case, 2 East, P. C. 1021.
The difficulties which arise in the proof of this offence, are thus noticed by a writer on the criminal law of Scotland : “ There is perhaps no crime in which evidence is so difficult as in this, both on account of the secrecy and privacy with which it is usually committed, and the devouring nature of the element raised, which destroys all the usual traces and indicia by which in other instances guilt is detected,”—“nevertheless it is not to be imagined that, on account of this difficulty, the prosecutor is to be considered as relieved from any part of the obligation to make out his case ; but only that, in default of direct testimony, which is very seldorn to be obtained, a conviction may be legally and safely obtained on circumstantial evidence, if it be only sufficiently weighty. To require direct evi. dence of the wilful completion of the crime, would be in *most, [ *249 ) and generally the worst cases, to secure absolute impunity to the criminal law.
(a) 2 Eng. C.C. 398. (b) Eng. Com. L. Rep. xxiv. 312.
“ Unlike other crimes, the proof of the corpus delicti in wilful fire-raising is generally mixed up with that which goes to fix guilt upon the prisoner ; nor indeed, in cases where direct evidence cannot be obtained, can it well be otherwise, as the first effect of the flames is to consume the combustibles which raised them. The indiciæ, which go to substantiate at once the corpus delicti and the guilt of the prisoner, are chiefly that the fire broke out suddenly in an uninhabited house, or in different parts of the same building; that combustibles have been found strewed about or dropped at intervals, or placed in convenient situations to excite combustion; as under beds, under thatch, under a stack, &c.: that the prisoner had a cause of ill-will at the sufferer, or had been heard to threaten him, or had been seen purchasing combustibles, or carrying them in the direction of the premises, or lounging about them at suspicious hours. To this is to be added, where the fire was raised to defraud insurers, the important facts of the premises or its furniture having been insured at a higher value, or in different offices at the same time, and of a claim hav, ing been made or attempted to be made at both offices." Alison's Principles of Cr. Law of Scotland, 444.
Proof of the property set fire to.] The prosecutor must prove that the property set fire to comes within the meaning of the statute, and the description given in the indictment.
It is not necessary to prove under this section that a dissenting chapel is registered and recorded, the words “duly registered and recorded," which were contained in the 7 and 8 Geo. 4, c. 30, s. 2, being omitted in the present enactment.
The word house includes, as it seems, all such buildings as would come within that description, upon an indictment for arson at common law. Vide ante, p. 244. That includes such buildings as burglary may be committed in at common law; but whether the word would now be held to include all such buildings as burglary nay be committed in under the 7 and 8 Geo. 4, c. 29, s. 13, seems to be doubtful. See Greenwood's Statutes, 232 (n.) A building intended for and constructed as a dwelling-house, but which had not been completed or inhabited, and in which the owner had deposited straw and agricultural implements, was held not to be a house, outhouse, or barn, within the 9 Geo. 1, b. 22. It was said that it was not a house in respect of which burglary or arson could be committed ; that it was a house intended for residence, but not inhabited, and therefore not a dwelling-house, though intended to be one. That it was not an outhouse, because not parcel of a dwelling-house; and that it was not a barn, within the meaning of that word as used in the statute. Elsmore v. Inhab. hundred of St. Briavells, 8 B. and C. 461 (a). Upon the construction of the same statute, (9 Geo. 1, c. 22,) it has been held that a common gaol comes within the meaning of the word house (1). The entrance to the prison was through the dwelling-house of the gaoler, [ *250 ] (separated from the *prison by a wall,) and the prisoners were sometimes allowed to lie in it. All the judges held that the dwellinghouse was to be considered as part of the prison, and the whole prison
(1) Stevens o. Commonwealth, 4 Leigh. 683. People o. Cotteral, 18 Johns. 115. People o. Van Blarcum, 2 Johns. 105. Commonwealth v. Posey, 4 Call. 109
(a) Eng. Com. L. Rep. xv. 266.
was the house of the corporation to whom it belonged. One of the counts laid it as the house of the corporation, another, of the gaoler, and a third, of the person whom the gaoler suffered to live in the house. Donnevan's case, 2 East, P. C. 1020; 2 W. Bl. 682; 1 Leach, 69. But where a constable hired a cellar (as a lock-up house) under a cottage, and the cellar was independent of the cottage in all respects, it was held that the cellar was not properly described in an indictment for arson, either as the dwelling-house of the constable, or as an outhouse of the cottage. Anon. cor. Hullock, B., 1 Lewin's C. C. 8.
A cotton mill was held to be within the meaning of the word mill in the statute 9 Geo. 1, c. 22. Anon. 2 Stark. Cr. Pl. 442, (n.)
Upon the meaning of the word “outhouse,” in the 9 Geo. 1, the following case was decided. It appeared that the prisoner (who was indicted for setting fire to an outhouse,) had set fire to and burnt part of a building of the prosecutor, situated in the yard at the back of his dwelling-house. The building was four or five feet distant from the house, but not joined to it. The yard was inclosed on all sides, in one part by the dwelling-house, in another by a wall, and in a third by a railing, which separated it from a field, and in the remaining part by a hedge. The prosecutor kept a public-house, and was also a flax-dresser. The buildings in question consisted of a stable, and chamber over it, used as a shop for the keeping and dressing flax. It was objected that this was part of the dwelling-house, and not an outhouse; but the prisoner having been convicted, the judges were of opinion that the verdict was right. It was observed that though, for some purposes, this might be part of the dwellinghouse, yet that in fact it was an outhouse. North’s case, 2 East, P. Č. 1022.
The following case was decided upon the words of the same statute. The prisoner was indicted in some counts for setting fire to an outhouse, in others to a house. The premises burned consisted of a school-room, which was situated very near to the house in which the prosecutor lived, being separated from it only by a narrow passage about a yard wide. The roof of the house, which was of tile, reached over part of the roof of the school, which was thatched with straw; and the school, with a garden and other premises, together with a court which surrounded the whole, were rented of the parish by the prosecutor at a yearly rent. There was a continued fence round the premises, and nobody but the prosecutor or his family had a right to come within it. It was objected for the prisoner, that the building was neither a house nor an outhouse within the 9 Geo. 1, c. 22; but the judges were of opinion that it was correctly described either as an outhouse, or part of a dwelling-house within the meaning of the statute. Winter's case, Russ. and Ry. C. C. 295 (a); 2 Russell, 493 (1).
The following case upon the construction of the same word arose upon an indictment under the 7 and 8 Geo. 4. The place in question *stood in an inclosed field, a furlong from the dwelling-house, [ *251 ] and not in sight. It had been originally divided into stalls, capable of holding eight beasts, partly open and partly thatched. Of late years it was boarded all round, the stalls taken away, and an opening lest for
(1) Jones v. Hungerford, 4 Gill & Johns. 402.
(a) 1 Eng. C. C. 295.
cattle to come in of their own accord. There was neither window nor door, and the opening was sixteen feet wide, so that a wagon might be drawn through it, under cover. The back part of the roof was supported by posts, to which side boards were nailed. Part of it internally was boarded and locked up. There was no distinction in the roof between the inclosed and the uninclosed part, and the inhabitants and owners usually called it the cow-stalls. Park, J., did not consider this an outhouse within the statute, but reserved the point for the opinion of the judges ; six of the judges were of opinion that this was an outhouse within the statute, but seven of their lordships being of a contrary opinion, a pardon was recommended. Ellison's case, 1 Moody, C. C. 336 (a). Seealso Hilles v. Inhab. of Shrewsbury, 3 East, 457 ; Woodward's case, 1 Moody, C. C. 325 (6).
The construction of the word “outhouse” also came into question in the followingcase. The place burned had been an oven to bake bricks, and stood at a distance from any house, but a door had been put to it with boards and turf over the vent-hole at the top, and a sort of loft-floor had been constructed within. A cow was kept in it; and adjoining, but not under the sameroof, was a lean-to, in which a horse was kept, but the latterbuilding, was not injured. Upon an indictment for burning this building, describing it as “an outhouse," and secondly, “as a stable," Taunton, J., was of opinion that it was not within the act; that it had been settled from ancient times, that an outhouse must be that which belongs to a dwelling-house, and is in some respect parcel of such dwelling-house. “This building,” he said, “is not parcel of any dwelling-house, and does not appear to be connected in any way with the premises of the prosecutor. Thereis no such word as cowhouse in the statute. The prisoner must be acquitted.” Haughton's case, 5 C. and P. 555 (1)(c).
The prisoner was tried before Littledale, J., upon an indictment, one count of which charged him with setting fire to an outbouse of W. D. The prosecutor was a laborer and poulterer, and had between two and three acres of land, and kept three cows. The building in question was in the prosecutor's farm-yard, and was three or four poles distant from the dwelling-house, from which it might be seen. The prosecutor kept a cart in it which he used in his business of a poulterer, and also kept his cows in it at night. There was a barn adjoining the dwelling-house, then a gateway, and then another range of buildings which did not adjoin the dwelling-house or barn; the first of which from the dwelling-house was a pig-sty, then another pig-sty, then a turkey-house, adjoining to which was the building in question. The dwelling-house and barn formed one side of the farm-yard, and the three other sides were formed by a fence in(*252] closing these buildings. The building in question was formed by six upright posts nearly seven feet high, three in the front and three at the back, one post being at each corner, and the other two in the middle of the front and back, these posts supporting the roof; there were pieces of wood laid from one side to the other. Straw was put upon these pieces of wood, laid wide at the bottom, and drawn up to a ridge at the top; the straw was packed up as close as it could be packed; the pieces of
(1) A barn not connected with the mansion, but standing alone several rods distant therefrom, is an outhouse within the act. State r. Brooks, 4 Conn. 446.
(a) 2 Eng. C. C. 336. (6) Ibid. 325. (©) Eng. Com. L. Rep. xxiv. 453.