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. 1031; and although the primary intention of the party were only to burn his own house, yet if, in fact others were burnt, being adjoining, and in such a situation as that the fire must in all probability reach them, the intent being unlawful, and malicious, and the consequence immediately and necessarily flowing from the original act done, it is felony. See 2 East, P. C. 1031, and Probert's case, there cited.

The offence may be committed, not only with regard to a dwelling-house, but also with regard to all out-houses 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 dwellinghouse, 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. (1)

With regard to what constitutes a man's own house, that appears to be the actual and immediate possession of the house with an interest in it; it has therefore 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 of three years. The judges in that 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, 115; 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.

An indictment for setting fire to the dwelling-house of A. and B., is not proved by showing that A. and B. are mortgagees of a house fit for dwelling in, unless it is also shown that they reside within it: and, therefore, it is not sufficient to prove that they are mortgagees out of possession. Allison's case, 1 Cox, C. C. 24. [ *272 ] *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 East, P. C. 1034, it appeared that the out-houses burned were the property of Blanch Silk, widow, but

(1) When the prisoner was charged with burning a dwelling-house, and it appeared that the building burned was designed and built for a dwelling-house; was constructed like one; was not painted, though designed to be, and some of the glass in an outer door had not been put in; it was held that this was not a dwelling-house, in such a sense, that the burning of it would constitute the crime of arson. But the law is otherwise, with regard to a dwellinghouse, once inhabited as such, and from which the occupant is but temporarily absent. The State v. McGowen, 20 Conn. 215.

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 out-houses, and took upon him the sole management of the farm with which these out-houses 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 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.

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) 1 Hale, C. P. 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 bein g 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, [*273] (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 indicted for a misdemeanor, Buller, J., directed an acquittal, on the ground, that as the houses of others had been burned, the offence

(1) An indictment for arson charging that the defendant did "feloniously, unlawfully, and maliciously," set fire, &c., was held to be sufficient without the word "wilfully." Chapman v. The Commonwealth, 5 Whart. 427.

12 Eng. C. C. 30.

amounted to felony. Isaac's case, 2 East, P. C. 1031. See also Probert's case, Id. 1030.

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, (E. & I.,) repealing the 7 & 8 Geo. 4, c. 30, (E.) and the 9 Geo. 4, c. 56, (I.,) 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. 245. Under the 7 Wm. 4 and 1 Vict. c. 89, s. 2, the prosecutor must prove: 1st. The setting fire (see post, p. 375). 2d. To a dwelling-house, which word seems to be used in the restricted sense given to it by the 7 & 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 dwelling-house when it was set on fire.

A stable, which adjoined a dwelling-house, was set on fire; the flames communicated to the dwelling-house, in which members of the family had been sleeping; but it did not appear whether the house took fire before they left the house or after. Alderson, B., in summing up the case to the jury, directed them to say by their verdict (should they find the prisoner guilty), whether the house took fire before the family was in the yard or after. If they were of opinion that it was after the family was in the yard, his lordship said, that he thought they ought to acquit the prisoner of the capital charge, as to sustain that, in his opinion, it was necessary that the parties named in the indictment should be in the house at the very time the fire was communicated to it. But his lordship added, that the point being a new one, and of very great importance, he should not take upon himself to decide it there, but should reserve the point for the decision of the judges. The prisoner was acquitted of the entire charge. Warren's case, 1 Cox, C. C. 68.

Setting fire to houses, &c.] By the 7 Wm. 4 and 1 Vict. c. 89, s. 3, (re-enacting the 7 & 8 Geo. 4, c. 30, s. 2, with some slight variations, but modifying the punish[*274] ment) "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 labour 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 labour, 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 under the third 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.

Setting fire to hovels, sheds, farm-buildings, &c.] By the 7 and 8 Vict. c. 62, (which by the fourth section is to be deemed a part of the 7 Wm. 4 and 1 Vict. c. 89,) s. 1, "whosoever shall unlawfully and maliciously set fire to any hovel, shed, or fold, or to any farm-building, or any building or erection used in farming land, 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. 2, "whoever shall unlawfully and maliciously set fire to any hay, straw, wood, or other vegetable produce, being in any farm-house or farm-building, or to any implement of husbandry being in any farm-house or farm-building, with intent thereby to set fire to such farm-house or farm-building, and to injure or defraud any person, shall be liable to the pains and penalties of unlawfully and maliciously setting fire to the said farm-house or farm-building, with intent thereby to injure or defraud such person."

By s. 3, " "every male person under the age of eighteen years, who shall be convicted of any offence under this act, shall be liable, at the discretion of the court before which he shall be convicted, in addition to any other sentence which may be passed upon him, to be publicly or privately whipped, in such manner [ *275 ] and as often, not exceeding thrice, as the court shall direct."

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 common law, and the " setting fire," under the statute, in effect mean the same thing. Id. 1038; ante, p. 270. The prisoner was indicted (under the 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.

On a charge of arson, it appeared that a small faggot was set on fire on the boarded floor of a room, and the faggot was nearly consumed; the boards of the floor were "scorched black, but not burnt," and no part of the wood of the floor was consumed. Cresswell, J., said; "Parker's case, (see infra) is the nearest to the present, but I think it is distinguishable. I have conferred with my brother Patteson, and he concurs with me in thinking, that as the wood of the

.....

floor was scorched, but no part of it consumed, the present indictment cannot be supported. We think that it is not essential to this offence that the wood should be in a blaze, because some species of wood will burn, and entirely consume without blazing at all. The prisoner must be acquitted." Maria Russell's case, Carr. & M. 541.

To constitute a setting on fire, it is not necessary that any flame should be visible. Stallion's case, 1 Moo C. C. 398; post, p. 278. This decision was come to upon the words "set fire" in the 7 & 8 Geo. 4, c. 30, s. 2, which are repeated in the

recent statute.

Where the prisoner was indicted under 7 Wm. 4 and 1 Vict. c. 89, s. 3, and it was proved that the floor near the hearth was scorched, and it was in fact charred in a trifling way, that it had been at a red heat, though not in a blaze, Parke, B., held that the offence was complete. Parker's case, 9 C. & P. 45.

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, made 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 C. & P. 266.4(n.)

If the indictment alleges that the offence was committed in the night time, [*276] *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, and generally the worst cases, to secure absolute impunity to the criminal law."

"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 b Eng. C. L. Reps. xli. 295. Eng. C. C. 398. dId. xxiv. 312.

• Id. xxxviii. 29.