Appeal-From Justice's Court, continued.

accused and all the material witnesses, to appear at the next term of the court, in such sums as he shall think proper; and he may require the accused to give sureties for his appearance as aforesaid. In all cases of appeal the trial shall be anew, without prejudice from the former proceedings.

(1) Lies for Defendant Only.

An appeal from a judgment of a justice of the peace, in a criminal action, lies only for the defendant.

Powell, 86-640.

State v.

An affeal doy, not lie from the fred if a f.P. ordering a defendant trauter into recognizance, to keep the peace on be imprisoned ! Sofyon 93

ARREST, 95-624

1. Judge's Charge.

(1) Excessive Force; Good Faith of Officer.

On a trial against an officer for assault and battery, in that he used more force than necessary in making an arrest, it is error to refuse to submit to the jury the question of good faith on the part of the officer while so making the arrest. State v. NcNinch, 90-695.

Arson, etc., continued.

I. Arson; Punishment. The Code, Sec. 985.

(1) Any person convicted, according to due course of law, of the crime of arson, shall suffer death.

(II.) Gin-House; Tobacco-House; Stable.

(2) Every person convicted of any willful burning of any gin-house or tobacco-house, or any part thereof, or-in the night-time-of any stable containing a horse or a mule, shall be imprisoned in the penitentiary not less than five nor more than ten years.

A. GIN-HOUSE. 46

1. Punishment.

(1) Cannot Exceed Ten Years.

The term of imprisonment for burning a gin-house cannot exceed ten years. State v. Dunn, 86-731.

(III.) Public Buildings.

(3) Any person who shall wilfully and maliciously burn the Statehouse, or any of the public offices of the State, or any courthouse, jail, arsenal, clerk's office, register's office, or any house belonging to any county or incorporated town in the State, or to any incorporated company whatever, in which are kept the archives, documents, or public papers of such county, town or corporation, shall, on conviction, be imprisoned in the penitentiary for not less than five nor more than ten years.

(IV.) Certain Bridges and Houses; Attempts.

(4) If any person, with intent to destroy the same, shall wilfully and maliciously set fire to and burn any public bridge, or private toll-bridge, or the bridge of any incorporated company, or any fire-engine house, or any house belonging to any county or incorporated town, used for public purposes other than the keeping of archives, documents and public papers, or any house belonging to an incorporated company and used in the business of such company; or if any person shall wilfully and maliciously attempt to burn any of the said houses or bridges, or any of

93-571

Arson, etc.-Certain Bridges and Houses, etc., continued.

the houses or buildings mentioned in this chapter, the person so offending shall be guilty of a misdemeanor, and punished by imprisonment in the penitentiary or county jail, for not less than four months nor more than ten years.

(V.) Certain Grains, Cotton, etc. 1885, c. 42, s. 1.

(5) Any person who shall wilfully burn or destroy any other person's corn, cotton, wheat, barley, rye, oats, buckwheat, rice, tobacco, hay, straw, fodder, shucks or other provender in a stack, hill, rick or pen, or secured in any other way out of doors, grass or sedge standing on the land, shall be guilty of a misdemeanor, and punished by imprisonment in the county jail or penitentiary for not less than four months nor more than five years.

(VI.) Setting Fire to Certain Houses. 1885, c. 66, s. 1. (6) Whoever shall wantonly and wilfully set fire to any church, chapel or meeting-house, or shall wantonly and wilfully set fire to any stable, coach-house, out-house, warehouse, office, shop, mill, 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, shall be guilty of felony and imprisoned in the penitentiary for not less than five nor more than forty years.

(1) Intent.

1. Judge's Charge.

State

Where an intent is made an ingredient of an offence, it is error to refuse to submit such question to the jury. v. Phifer, 90--721.

Burning an out-house, used as a storehouse, is a felony; therefore, an indictment which fails to charge the burning to have been done feloniously, is defective. State v. Roper, 88-656.

NOTE. That portion of the statute relating to "with intent to injure," &c., has been repealed. See acts of 1885, c. 66, s. 1.

Arson, etc., continued.

2. Evidence.

(1) Occupied as a Storehouse; Variance.

An "out-house" is a house situated within the curtilage; therefore, on the trial of an indictment charging the burning of "an out-house, used as a storehouse," the proof being that the house was an old building, located at a cross-roads, and occupied as a storehouse, but not enclosed or used in any way as a dwelling-house: Held, a fatal variance. State v. Roper, 88-656.

A motion in arrest of judgment is good if an indictment, under the statute, for burning a barn, fail to charge that the act was done "with intent to injure" some person. State v. Porter, 90-719.

See note to VI, 1, (1).

(2) At Common-Law.

An indictment at common-law, for burning a barn, must aver that the barn contained hay or grain, or is parcel of the dwelling-house. State v. Porter, 90-719, 93-571

D. MILL.

1. Punishment.

(1) Not Less than Five nor More than Sixty Years.

On conviction of a defendant, on an indictment charging that he "unlawfully, wilfully, maliciously, and feloniously did set fire to and burn a certain grist-mill house," the property of, &c., omitting to charge that the burning was "with intent thereby to injure or defraud" any person, he may be punished by confinement in the State's prison for not less than five nor more than sixty years. State v. Wright, 89-507.