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The setting fire to the house of another, maliciously to burn it, is not a felony, if either by accident or timely prevention, the fire does not take place. 1 Hale, P. C. 568.
Where a house has been robbed and burnt, proof that part of the stolen property was found in the possession of the prisoner is evidence to show that he committed the arson. Rickman's case, 2 East, P. C. 1035, ante, p. 74.
Proof that the house, be the house of another.  at common law.
&c. burnt, is the house of another.] It must The burning of a man's own house is no felony 1 Hale, P. C. 568. 1 Hale, P. C. 568. 2 East, P. C. 1027. *But if a man set fire to his own house, maliciously intending thereby to burn the adjoining house, belonging to another, if the latter house is burned, it is felony; if not, it is a great misdemeanor. 1 Hale, P. C. 568. 2 East,
P. C. 1027.
The offence may be committed, not only with regard to a dwellinghouse, but also with regard to all outhouses which are parcel of it, though not contiguous, or under the same roof, as in the case of burglary at common law. 1 Hale, P. C. 567. And at common law, to burn a barn or outhouse, though not parcel of a dwelling-house, was felony, if it had hay or corn in it. Id. The various descriptions of buildings and farming stock are, however, now expressly protected by statute, vide infra; and it will not therefore be necessary to examine how far they come within the protection of the common law.
With regard to what constitutes a man's own house, it has been held that a tenant for years of a house cannot at common law be guilty of a felony by burning it. Holmes's case, Cro. Car. 376; 1 Hale, P. C. 568; 2 East, P. C. 1023. So a copyholder, although he has surrendered the house by way of mortgage. Spalding's case, 1 East, P. C. 1025; 1 Leach, 218. So a person who is in possession, under an agreement for a lease for three years. The Judges in this case said, that the principle upon which Holmes's case (supra) was decided was right, and it was the protection of the person in the actual and immediate possession of the house. Breeme's case, 1 Leach, 220; 2 East, P. C. 1026. See also Pedley's case, 1 Leach, 242.
Upon the same principle, a landlord may be guilty of felony at common law, by burning the house of his tenant. Foster, 215; 4 Bl. Com. 221. So a woman entitled to dower out of a house in mortgage, the house having been let by her, and the tenant in possession, no dower having been assigned, was held to be guilty of felony in burning the house. Harris's case, Foster, 113; 2 East, P. C. 1023. So a pauper put into a house rented from year to year by the overseers, and suffered to live there without paying rent, has no interest, but is merely a servant, and is guilty of felony if he sets fire to the house. The overseers have possession of the house by means of his occupation. Gowan's case, 1 Leach, 246, (n.) 2 East, P. C. 1027; Rickman's case, 2 East, P. C. 1034.
It requires great nicety, observes Mr. East, (P. C. 1034,) to distinguish the person who may be said to occupy suo jure, and against whom the offence must be laid to have been committed. In Glandfield's case, 2
case, 2 Rogers' Rec. 85. To attempt to fire a house is a misdemeanor at common law. Orr's case, 5 Id. 181.
East, P. C. 1034, it appeared that the outhouses burned were the property of Blanch Silk, widow, but were only made use of by John Silk, her son, who lived with her after his father's death in the dwelling-house adjoining the outhouses, and took upon him the sole management of the farm with which these outhouses were used, to the loss and profit of which he stood alone, though without any particular agreement between him and his mother. He paid all the servants and purchased all the stock, but the legal property, both in the dwelling-house and in the farm, was in the [*246] mother, and she alone repaired the dwelling-house and the out-houses. Heath, J., held, that as to the stable, pound, and hog-sties, which the son alone used, the indictment must lay them in his occupation; that with regard to the brewhouse, (the mother and son both occasionally paying for ingredients, and the beer being used in the family, the mother contributing to the expense,) the same should be laid to be in their joint occupation. The prisoner was indicted accordingly, convicted, and executed.
The house was described in the indictment, 1, as that of Fearne; 2, as that of Davies; 3, as that of the prisoner. It appeared that Fearne occupied part of the house, and let out the rest in lodgings. The room set fire to was let to the prisoner. Two months after the fire he was discharged as an insolvent debtor, and had before executed an assignment, including the house, to Davies. Davies never took possession. Upon a case reserved on the point, whether the possession of the house was rightly described, the Judges held it was so, for the whole house was properly in the possession of Fearne, the possession by his tenants being his possession, and if not, the prisoner's own room might be described as his house. Bull's case, M. 1824; Bayley's MSS. 1 Moo. C. C. 30 (a).
Proof of malice and wilfulness.] It must be proved that the act of burning was both wilful and malicious, otherwise it is only a trespass and not felony. 1 Hale, P. C. 569. Therefore if A. shoot unlawfully at the poultry or cattle of B., whereby he sets the house of another on fire, it is not felony; for though the act he was doing was unlawful, he had no intention to burn the house. Id. In this case, observes Mr. East, it should seem to be understood, that he did not intend to steal the poultry, but merely to commit a trespass; for otherwise, the first attempt being felonious, the party must abide all the consequences. 2 East, P. C. 1019.
If A. has a malicious intent to burn the house of B., and in setting fire to it, burns the house of B. and C., or the house of B. escapes by accident, and that of C. only is burnt, though A. did not intend to burn the house of C., yet in law this is a malicious and wilful burning of the house of C., and A. may be indicted accordingly. 1 Hale, P. C. 569; 2 East, P. C. 1019. So if A. command B. to burn the house of J. S., and he do so, and the fire burns also another house, the person so commanding is accessary to the burning of the latter house. Plowd. 475; 2 East, P. C. 1019. So where the primary intention of the offender is only to burn his own house (which is no felony), yet if in fact other houses are thereby burned, being adjoining, and in such a situation as that the fire must in all probability reach them, the intent being unlawful, and the consequence immediately and necessarily flowing from the original act done, it is felony. 2 East, P. C. 1031. In a case of this kind, where the prisoner was in
(a) 2 Eng. C. C. 30.
dicted for a misdemeanor, Buller, J., directed an acquittal, on the ground, that as the houses of others had been burned, the offence amounted to felony. 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.
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 seldom to be obtained, a conviction may be legally and safely obtained on circumstantial evidence, if it be only sufficiently weighty. To require direct evidence 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 indicia, 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 having 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 may 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 v. Commonwealth, 4 Leigh. 683. People v. Cotteral, 18 Johns. 115. People v. Van Blarcum, 2 Johns. 105. Commonwealth v. Posey, 4 Call. 109.
(a) Eng. Com. L. Rep. xv. 266.