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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 left 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 (b).

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 outhouse 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 from, is an outhouse within the act. (a) 2 Eng. C. C. 336. (b)

mansion, but standing alone several rods distant thereState v. Brooks, 4 Conn. 446.

Ibid. 325. (c) Eng. Com. L. Rep. xxiv. 453.

wood and straw made the roof. The front of the building to the farmyard was entirely open between the posts, one side of the building adjoined the turkey-house which covered that side all the way up to the roof, and that side was nailed to the turkey-house. The back adjoined a field and was a rail fence, the rails being six inches wide; these came four or five feet from the ground within two feet of the roof, and this back formed part of the fence before mentioned. The side opposite to the turkey-shed adjoined the road, and was a pale fence but not quite up to the top. One of the witnesses for the prosecution, a considerable farmer, said he should consider the building an outhouse.

About half past two o'clock in the afternoon smoke was seen to issue from the bottom of the roof, in the corner between the field above mentioned and the road; there was a good deal of smoke in the straw; some handfuls of straw were pulled out; there were sparks in the straw when upon the ground, but no sparks were seen in the straw upon the roof; no flame was seen; a ball of linen was pulled out of the roof with the straw; smoke and sparks came from the ball; the ball was trod out; the ball was burnt right through one side; three or four pails of water were brought, and the fire on the roof was extinguished by throwing some of the water upon it. On the following day two half matches were found in the straw on the ground which was pulled from the roof, but there was no appearance of burning in those. On the same day several handfuls of straw were taken out of the roof, and there was burnt straw in some of these handfuls; and on the same day, on examining the straw lying on the ground down by the building, there were some burnt ashes, and the ends of some of the straw were burnt, and the ends of some of them dropped off like a powder, and the ends of some of the straw had been reduced to ashes; no part of the wood, either in the pieces on which the straw was laid, or in the posts of the building was burnt. The prisoner was convicted, and sentence of death passed upon him, but execution was respited to take the opinion of the judges. Three questions were submitted to them. 1st. Whether the building was an outhouse within the meaning of the 7 and 8 Geo. 4, c. 30, s. 2? 2d. Whether, in case the building were an outhouse, the straw (as above described) was a part of the building? 3d. Whether this was a setting on fire? All the judges present (except Tindal, C. J.,) thought the erection an outhouse, and that the conviction was right. Stallion's case, 1 Moody, C. C. 398 (a).

The house burned should be described as being in the possession of the person who is in the actual occupation, even though the possession *be wrongful. Thus where a laborer in husbandry was permit- [253] ted to occupy a house as part of his wages, and after being discharged from his master's service, and told to quit the house in a month, remained in it after that period; it was held by the judges, upon an indictment for setting fire to the house, that it was rightly described as being in the possession of the laborer. Wallis's case, 1 Moody, C. C. 344 (b)(1).

Proof of the intent to injure or defraud.] The prosecutor must prove the intent to injure or defraud the party mentioned in the indictment.

(1) If it be in fact the dwelling-house, the court will not inquire into the tenure or interest of the occupant. People v. Van Blarcum, 2 Johns. 105.

(a) 2 Eng. C. C. 398. (6) Ibid. 344.

Upon the proof of the intent of the prisoner, Tindal, C. J., made the following observations in his charge to the grand jury at Bristol. "Where

the statute directs, that to complete the offence it must have been done with intent to injure or defraud some person, there is no occasion that either malice or ill will should subsist against the person whose property is so destroyed. It is a malicious act in contemplation of law, when a man wilfully does that which is illegal, and its necessary consequence must injure his neighbor, (vide ante, p. 20), and it is unnecessary to observe that the setting fire to another's house, whether the owner be a stranger to the prisoner, or a person against whom he had a former grudge, must be equally injurious to him; nor will it be necessary to prove that the house, which forms the subject of the indictment in any particular case, was that which was actually set on fire by the prisoner. It will be sufficient to constitute the offence, if he is shown to have feloniously set on fire another house, from which the flames communicated to the rest. (Vide ante, p. 245.) No man can shelter himself from punishment on the ground that the mischief he committed was wider in its consequences than he originally intended." 5 Car. and P. 266, (n.) (a). Thus where a man was indicted for setting fire to a mill, (43 Geo. 2, c. 58, s. 1, repealed) with intent to injure the occupier thereof, and it appeared from the prosecutor's evidence that the prisoner was an inoffensive man, and never had any quarrel with the occupier, and that there was no known motive for committing the act, and he was convicted; the judges held the conviction right, for that a party who does an act wilfully, necessarily intends that which must be the consequence of his act. Farrington's case, Russ. and Ry. C. C. 207 (b). Philp's case, 1 Moody, C. C. 273, ante, p. 21 (c).

A wife cannot be guilty, under the statute, of setting fire to her husband's house, with intent to injure or defraud him. The judges held such a conviction wrong, thinking that to constitute the offence, there should be an intent to injure or defraud some third person, not one identified with herself. March's case, 1 Moody, C. C. 182 (d).

Where the intent laid is to defraud insurers, the insurance must be proved. To prove this the policy must be produced; evidence of the books of an insurance company not being admissible, unless the want of [*254] the policy is accounted for. Doran's case, 1 Esp. 127. *The policy must be properly stamped. Gieson's case, Russ. and Ry. C. C. 138 (e); 2 Leach, 1007; 1 Taunt. 95; ante, p. 164.

Setting fire to coal mines.] By the 7 Wm. 4 and 1 Vict. c. 89, s. 9, "whosoever shall unlawfully and maliciously set fire to any mine of coal, or cannel coal, shall be guilty of felony," and on conviction may be transported for life, or for not less than fifteen years, or imprisoned for not exceeding three years.

Setting fire to stacks, &c.] By the 7 Wm. 4, and 1 Vict. c. 89, s. 10," whosoever shall unlawfully and maliciously set fire to any stack of corn, grain, pulse, tares, straw, haulm, stubble, furze, heath, fern, hay, turf, peat, coals, charcoal, or wood, or any steer of wood, shall be guilty

(a) Eng. Com. L. Rep. xxiv. 312. (b) 1 Eng. C. C. 207. (c) 2 Ibid. 273. (d) 2 Ibid. 182. (e) 1 Ibid. 138.

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."

As to the power of the court to award hard labor and solitary confinement, see ante, p. 247.

By the 7 & 8 Geo. 4, c. 30, s 17, (which portion of the section is not repealed by the above statute) if any person shall unlawfully and maliciously set fire to any crop of corn, grain, or pulse, whether standing or cut down, or to any part of a wood, coppice, or plantation of trees, or to any heath, gorze, furze, or fern, wheresoever the same may be growing; every such offender 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 seven years, or to be imprisoned for any term not exceeding two years, and if a male to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment.

The evidence upon an indictment under the tenth section of the 7 Wm. 4 and 1 Vict. c. 89, will in all material respects resemble that upon an indictment for setting fire to a house, &c., under section 3, ante, p.


Where a man was indicted under statute 9 Geo. 1, c. 22, which made it felony to set fire to any cock, mow, or stack of corn, and was charged with being accessary to setting fire to "an unthrashed parcel of wheat," this was held not to be an offence within the statute. Judd's case, I Leach, 484; 2 East, P. C. 1018; 2 T. R. 255.

The prisoner was indicted under the 7 and 8 Geo. 4, c. 30, s. 17, for setting fire to "a stack of straw." It appeared in evidence that the stack in question was made partly of straw, there being two or three loads at the bottom, and the residue of haulm, that is, the aftermath or stubble of rye or wheat, about eighteen inches long: according to one witness the straw and haulm were mixed. Amongst other objections to the indictment it was urged that this was not a stack of straw within the statute, and upon a case reserved *for the opinion of the judges, they [ *255 ] held all the objections good. The prisoner was afterwards indicted for setting fire to "a stack of straw called haulm;" but Vaughan, B., intimated his opinion that it was unsafe to convict on such a count. Reader's case, 4 C. and P. 245 (a); 1 Moody, C. C. 239 (b). See also Brown's case, 4 C. and P. 553, (n.) (c); Tottenham's case, 7 C. and P. 237 (d); 1 Moo. C. C. 461 (e).

The recent statute, it will be observed, uses the words haulm and stubble as well as straw.

It should be observed that in Reader's case, there was another and fatal objection to the indictment, viz., that it omitted the word "unlawfully," which is used in the statutory description of the offence, and it was therefore unnecessary to decide the objection as to the description of the stack, though in the report (4 C. and P. 245,) it is stated that the judges held the indictment bad upon all the objections.

Where the prisoner was indicted under the 7 & 8 Geo. 4, c. 30, s. 17,

(a) Eng. Com. L. Rep. xix. 367. (b) 2 Eng. C. C. 239. (c) Eng. Com. L. Rep. xix. 523. (d) Id. xxxii, 500, (e) 2 Eng. C. C. 461.

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