The first count charged the prisoner with setting fire to a shed of the S. E. R. Co.; the second another shed of one Lake; the third certain goods of the company's in another shed of the company; the fourth certain goods of one Lake, in an other shed of the said Lake; and the last certain goods of the company in another shed of Lake's. On arraignment it was urged that the prosecution ought to elect, as the indictment charged distinct felonies under different sections of the Act. Wightman, J. "It does not appear that it is not all one and the same transaction, or indeed one and the same act; the prisoner may have set fire to goods in one shed, and so set fire to others; in that case it will be all one act."(c)

In a case where the prisoners were charged with setting fire to a house, the proof adduced by the first witness of their having been present in the house, and impli cated in the fact, was that a bed and blankets, which had been taken out of the house at the time it was fired, and concealed by them from that time, were afterwards found in their possession; and Buller, J., doubted at first whether such evidence of another felony could be admitted in support of this charge. But as it *1051] seemed to be all one act, although *the prisoners came twice to the house fired, which was adjoining to their own, he admitted this amongst other evidence.(d)

A female servant of the prosecutor was indicted for setting fire to his stable. The fire was discovered at an early hour in the morning in the stable, which was not far from the kitchen, where it was the duty of the prisoner to be; and in order to prove that it must have originated in the wilful act of some one connected with the house, it was proposed to show that on two former recent occasions attempts had been made by some one from within the house to fire the warehouse and the shop of the prosecutor, though there was no evidence to show that the prisoner or any other person was implicated in these attempts; and Pollock, C. B, held that this evidence was clearly admissible, and might be used at all events for the purpose of showing that the present fire could not have been the result of accident. Surely if a man finds certain mysterious circumstances to arise day after day in his establishment, he is at liberty to refer to them, if only for the purpose of showing that they could not have had their origin in accident, and that a repetition of them could only lead to the conclusion that they resulted from malice and design.(e)1

One indictment charged the prisoner with setting fire to a rick of one Wilson, another a rick of one Applebee, and a third a rick of one Taylor.(ƒ) On the evening before the fires, which were all in the same night, the prisoner was at a public-house, and complained that Wilson had sent a lawyer's letter to his father for a debt of £3, which the prisoner owed him, and he said he would be even with him, and would light Badsey from end to end, and burn the whole lot. He left the public-house about half-past six, saying he was going to Evesham, to do which he would have to pass near both Applebee's and Wilson's rickyards. At seven a rick in Applebee's yard was on fire, but soon put out. At half-past seven a rick in Wilson's yard, about half a mile distant, was on fire, and the prisoner was seen to come out of an orchard into the rickyard, and he said that he had heard the cry of fire, and in running to the place had jumped into the millpond, and was wet through; but his dress appeared quite dry. He assisted in putting out the fire, and afterwards went into the house, and was there as late as eleven; but in the meantime had been home and changed his clothes, and his frock was then very wet. At half

(c) Reg. v. Davis, 3 F. & F. 19. The proof was that the prisoner set fire to some straw in a shed let by the company to Lake, and the shed and goods of Lake therein were

burnt.

(d) Rickman's case, 2 East P. C. c. 21, s. 11, p. 1035.

(e) Reg. v. Bailey, 2 Cox C. C. 311. Pollock, C. B., cited Captain Donallan's case, where it was proved that a tree had been sawn nearly in two near a spot where Sir T. Boughton used to fish, on a trial for poisoning him, though there was no proof who had sawn it.

(f) In order that the prisoner might not be prejudiced the facts were stated to Patteson, J., out of the hearing of the jury, and the evidence adduced according to his opinion.

1 Previous threats of revenge against the owner are admissible: Comm. v. Goodwin, 14 Gray 55. On an indictment for arson, the jury may view the premises: Fleming v. State, 11 Ind. 234.

past twelve a rick of the prisoner's uncle was on fire, and the people at Wilson's immediately proceeded towards it, and met the prisoner running towards Wilson's. He was told his father's or his uncle's ricks were on fire, and replied, "Not it," and proceeded towards Wilson's; but afterwards was assisting at putting out the fire at his uncle's. Patteson, J., was of opinion that, on the part of the prosecution, evidence might be given, on the indictment for setting fire to Wilson's rick, of the movements of the prisoner during the whole of that night, including the [*1052 facts of his presence *and demeanor at the other fires, the subject of the two other indictments; but that evidence ought not to be given of threats, statements, and particular acts pointing alone to those other charges, and not tending to implicate or explain the conduct of the prisoner in reference to the fire at Wilson's.(g)

On an indictment for setting fire to a rick of straw it appeared that the rick had been set on fire by the prisoner's having fired a gun very near it; and on the part of the crown it was proposed to prove that the rick had been on fire on the previous day, and that the prisoner was then close to it with a gun in his hand. The defence was that the firing at the rick was accidental. It was contended that the evidence was not admissible. The firing of the rick on the previous day, if wilfully done, was a distinct felony. Maule, J.: "Although the evidence offered may be proof of another felony, that circumstance does not render it inadmissible, if the evidence be otherwise receivable. In many cases it is an important question whether a thing was done accidentally or wilfully." "I shall receive the evidence."(h)

On an indictment for setting fire to a building it appeared that the prisoner had given notice of other fires, and had claimed the reward usually paid on such occasions at the engine station, and he had apparently no other motive in setting fire to the building in question than the expectation of getting such reward; and, on the part of the crown, it was proposed to show that the other fires, of which the prisoner had given notice, were of a similar nature to the one in question, and different from those of which notice was given by other parties; but Erle, J., held, that the mere fact of the prisoner's having given notice of other fires, and claiming the reward, did not permit evidence to be adduced, on which a presumption could be grounded that he caused these fires.(i)

Where on an indictment for manslaughter in causing a death by setting fire to a ship it was opened that the prisoner struck a light with a match, and lighted a candle, in a part of the ship forbidden by the ship's regulations, and threw away the match before it was extinguished, but that after he had done so a period of six hours elapsed without any sign of fire by sight or smell; Bramwell, B., said, "I cannot say there is no evidence for the jury, and undoubtedly if you could prove exhaustively that the fire could not have arisen from any other cause, that would be sufficient. But here six hours elapse without the slightest sign, and it would seem rather like guessing at the prisoner's guilt, which should be brought home to him without any reasonable doubt, to convict him upon this evidence."(j)

On an indictment for arson of a house with intent to defraud it was suggested that the motive might have been the desire to realize the sum insured upon the furniture, &c.; and Pollock, C. B., held that evidence was admissible that the prisoner was in easy circumstances, and had a comfortable income.()

It was ruled upon an indictment for arson, that the books of an insurance [*1053 company are not evidence of an insurance, unless *notice had been given to produce the policy.(k) On an indictment for feloniously setting fire to a house with intent to defraud an insurance company, a policy of insurance was given in

(g) Reg. r. Taylor, 5 Cox C. C. 138. Evidence was accordingly given of which that stated in the text is a summary; but threats against Applebee and Taylor were not tendered in evidence. See Reg. v. Long, 6 C. & P. 179 (25 E. C. L. R.), post, Evidence, vol. 3, p. 283.

(h) Reg. v. Dossett, 2 C. & K. 306 (61 E. C. L. R.). Maule, J., also said, "If a person were charged with having wilfully poisoned another, and it were a question whether he knew a certain white powder to be poison, evidence would be admissible to show that he knew what the powder was, because he had administered it to another person who had died, although that might be proof of another distinct felony."

(i) Reg. v. Regan, 4 Cox C. C. 335. () Reg. v. Grant, 4 F. & F. 322.

(j) Reg. v Gardner. 1 F. & F. 669.

(k) Rex v. Doran, 1 Esp. 127, Kenyon, C. J.,

evidence on the part of the prosecution, by which the prisoner's goods, in a house described in the policy, were insured against fire, and upon which a memorandum was indorsed stating that the goods insured had been removed from the house described in the policy to another house mentioned in the memorandum. In this house so mentioned in the memorandum the prisoner was charged with having committed the felony. The policy was properly stamped, but the memorandum had no stamp; and upon this circumstance, an objection was taken on behalf of the prisoner that it was essentially necessary to show, in support of the charge, that there subsisted a legal effective contract; and that, by the express provisions of the Stamp Acts, the memorandum in question not being stamped could not be given in evidence, or be good or available in any manner whatever. The point was reserved, and the conviction was held to be wrong (1)

The offence of setting fire to a stack of corn is not local but transitory; it is therefore no objection, upon the plea of not guilty to an indictment, that it alleges the fire to have taken place at a different place from what it did, or at a parish which, in fact, does not exist. The indictment charged that the prisoner, at the parish of Normanton on the Would, in the county of Nottingham, set fire to a certain outhouse there situate, and to a certain stack of beans then and there being, with intent, &c. The second count stated that the prisoner at the parish aforesaid, &c., set fire to a certain outhouse there situate, &c. The third count stated that the prisoner at the parish aforesaid set fire to a certain stack of beans, &c. The house was in Normanton on the Would, in the county of Nottingham, which is a hamlet, maintaining its own poor, and is in the parish of Plumtree; there is no such parish as Normanton on the Would in the county of Nottingham; but there are two parishes called Normanton in the county, one called Normanton on the Sour, the other Normanton on Trent. Gaselee, J., and Littledale, J., doubted whether the prisoner could be convicted on this indictment. The objection seemed to be more particularly applicable to the charge as to the outhouse, as there was a local description given to it which should be proved as laid, and even if the words "on the Would" could be rejected as surplusage in mentioning the parish, still there was no such parish as Normanton singly. But they thought the objection as to the outhouse not material, if the indictment were correct as to the stack of beans; and as to that, the first question would be, whether the setting fire to that were to be considered as of a local nature as to the parish, or whether it were to be considered in the same light as common larceny, which need not to be proved in the parish alleged, provided it be in the county; and if it should be put on the same ground as common larceny in this respect, then a question would arise whether, as it was proved negatively that there was no such parish as Normanton on the Would in the *county, the indictment could be sustained. And, upon a case reserved. *1054] the judges present unanimously held that the offence of setting fire to the stack of beans had nothing of locality in it, and that there was no such place in the county could only be taken advantage of by plea in abatement; and the convietion was affirmed.(m)

The punishment of principals in the second degree and of accessories has been already mentioned amongst the general provisions of the 24 & 25 Vict. c. 97.(n) Upon an indictment for any offence mentioned in this chapter (except the attempts specially provided for as such), the jury may, under the 14 & 15 Vict. c. 100, s. 9,(0) convict the prisoner of an attempt to commit the same, and thereupon he may be punished in the same manner as if he had been convicted on an indictment for such attempt.

The prisoners were jointly charged with attempting to set fire to a malthouse. One of the prisoners had gone to bed an hour and a half before the fire was discovered, and the evidence tended to show that the other prisoner had lighted the fire

(1) Gillson's case, 2 Leach 1007; 1 Taunt. 95; R. & R. 138. But the 17 & 18 Vict. c. 83, s. 27, obviates such objections altogether.

(m) Rex v. Woodward, R. & M. C. C. R. 323. See the 14 & 15 Vict. c. 100, s. 23, ante, p. 323. There seems no reason to doubt, although no opinion was given by the judges on the point, that the description of the outhouse being local was bad. See ante, p. 323. (n) Ante, p. 1021. (0) Ante, vol. 1, p. 1.

1 Comm. v. Lamb, 1 Gray 493; State v. Gaffrey, 4 Chand. 163.

very shortly before it was discovered. It was objected that there was no case against the former prisoner. It was answered that whatever would make a person an accessory before the fact in a felony would make him a principal in a misdemeanor; and Williams, J., overruled the objection, and told the jury that in treason and misdemeanor all who take part in the crime are principals, and that it was not necessary in this case to prove that the one prisoner was present when the other prisoner attempted to set fire to the malthouse, and if they were satisfied that the one counselled and encouraged the other to set fire to the malthouse, they might both be convicted on this indictment.(p)

The prisoner was indicted, on the 9 & 10 Vict. c. 25, s. 7, for attempting to set fire to a stack of corn with a lucifer-match. The prisoner applied to the prosecutor for work, and being refused threatened to burn him up: he was then seen to go to a neighboring stack, and, kneeling down close to it, to strike a lucifer-match, but discovering that he was watched, he blew out the match, and went away. Pollock, C. B., told the jury that if they thought the prisoner intended to set fire to the stack, and that he would have done so had he not been interrupted, this was in law a sufficient attempt to set fire to the stack within the meaning of the statute. It was clear that every act done by a person with a view of committing the felonies therein mentioned was not within the statute; as, for instance, buying a box of lucifer-matches with intent to set fire to a house. The act must be one immediately and directly tending to the execution of the principal crime [and committed by the prisoner under such circumstances that he has the power of carrying his intention into execution].(g) *The facts proved in this case were sufficient to warrant the jury in finding the prisoner guilty, if they thought that he intended to set fire to the stack.(r)

[*1055

In conclusion of this chapter, it may be mentioned, that by the 14 Geo. 3, c. 78, s. 84, if any menial or other servant, through negligence or carelessness, shall fire, or cause to be fired, any dwelling-house or outhouse, and be convicted thereof, by oath of one witness before two justices, he shall forfeit £100 to the churchwardens, to be distributed amongst the sufferers by such fire; and if he shall not pay the same immediately on demand of the churchwardens, he shall be committed by the justices to some workhouse, or common gaol or house of correction, for eighteen months, there to be kept to hard labor.

The 28 & 29 Vict. c. 90, repeals the 14 Geo. 3, c. 78; except 83 and 86.

*CHAPTER THE FORTY-FIFTH.

INJURIES TO BUILDINGS BY TENANTS.

[*1056

By the 24 & 25 Vict, c. 97, s. 13, "whosoever being possessed of any dwellinghouse or other building, or part of any dwelling-house or other building, held for any term of years or other less term, or at will, or held over after the termination of any tenancy, shall unlawfully and maliciously pull down or demolish, or begin to pull down or demolish, the same or any part thereof, or shall unlawfully and maliciously pull down or sever from the freehold any fixture being fixed in or to such dwellinghouse or building, or part of such dwelling-house or building, shall be guilty of a misdemeanor.(a)

(p) Reg. v. Clayton, 1 C. & K. 128 (47 E. C. L. R.).

(7) The dictum between brackets seems to be erroneous; for there is no doubt that a man be guilty of an attempt to commit a crime, though he be prevented by superior force from doing so.

(r) Reg. v. Taylor, 1 F. & F. 511.

(s) This clause is new in England. It was framed from the 9 Geo. 4, c. 56, s. 24 (I.), the terms being considerably altered.

This clause extends the former enactment to any tenant of any part of a dwelling-house or other building.

This clause is a very important improvement in the law of England, as tenants have

*1057]

*CHAPTER THE FORTY-SIXTH.

OF KILLING AND MAIMING CATTLE AND OTHER ANIMALS.

IT has been holden that no indictment lies at common law for unlawfully with force and arms maiming a horse. The indictment charged that the prisoner, on, &c., with force and arms at, &c., "one black gelding of the value of £30, of the goods and chattels of one W. Collyer, then and there being, then and there unlawfully did maim, to the great damage of Collyer, and against the peace, &c.;" upon reference to the judges after conviction, they all held that no indictable offence was stated in the indictment; that if the case were not within the Black Act, 9 Geo. 1, c. 22, the fact itself was only a trespass; and that the words vi et armis did not imply force sufficient to support an indictment. (a)

The 9 Geo. 1, c. 22 (commonly called the Black Act), was for a considerable time the principal statute upon the offence of maliciously maiming and killing cattle. But that and other statutes are now repealed.

By the 24 & 25 Vict. c. 97, s. 40, whosoever shall unlawfully and maliciously kill, maim, or wound any cattle shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen and not less than five(aa) years,- or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(b)

Sec. 41. "Whosoever shall unlawfully and maliciously kill, maim, or wound any dog, bird, beast, or other animal, not being cattle, but being either the subject of larceny at common law, or being ordinarily kept in a state of confinement, or for any domestic purpose, shall, on conviction thereof before a justice of the peace, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labor, for any term not exceeding six months, or else shall forfeit and pay, over and above the amount of injury done, such sum of money not exceeding twenty pounds as to the justice shall seem meet; and whosoever, having been convicted of any such offence, shall afterwards commit any of the said offences in this section before mentioned, and shall be convicted thereof in like manner, shall be committed to the common gaol or *1058] house of correction, there to be kept to *hard labor for such term not exceeding twelve months as the convicting justice shall think fit."(c) As this statute relates to the offence of maiming, &c., "cattle" in general, it may be proper to introduce some of the cases as to the meaning of that word in the repealed Acts.

very frequently, especially when under notice to quit, wilfully injured houses and buildings to a great extent. This clause only extends to houses and buildings; but the effect of sec. 59, ante, p. 1021, is to render a tenant liable for any other malicious injury mentioned in this Act, if done with intent to injure the landlord.

No punishment for the offence created by this section was inserted, because it was thought that the common law punishment of fine or imprisonment, or both, was the proper punishment. See ante, vol. 1, p. 92. As to hard labor, &c., see ante, p. 1022. (a) Ranger's case, 2 East P. C. c. 22, s. 16, p. 1074.

(aa) 27 & 28 Vict. c. 47.

(b) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 16, and 9 Geo. 4, c. 56, s. 17 (I.), the punishment being altered by several subsequent Acts. As to hard labor, &c., see ante, p. 1022.

(c) This clause is new, and is a great improvement of the law, as it will protect domestic animals from malicious injuries. It includes any beast or animal, not being cattle, which is the subject of larceny at common law. It also includes birds which are the subject of larceny at common law; such are all kinds of poultry, and, under certain circumstances, swans and pigeons. So also it includes any bird, beast, or other animal ordinarily kept in a state of confinement, though not the subject of larceny, such as parrots and ferrets; and it is to be observed that the words "ordinarily kept in a state of confinement" are a description of the mode in which the animal is usually kept, and do not render it necessary to prove that the bird or animal was confined at the time when it was injured. Lastly, the clause includes any bird or animal kept "for any domestic purpose," which clearly embraces cats.