house was closed, he entered the house and room of the prosecutor (for whom he worked, and in whose room he was accustomed to sleep) opened a trunk therein, took $16 in money therefrom, left the house, and was taken the next day with part of the money on his person. Exception being taken to refusal to grant a new trial, the supreme court sustained the judgment of the court below, because there was no complaint of improper instruction to the jury, and there was evidence from which they might have found that defendant entered the house with intent to steal; which being so, the conviction was proper. It was admitted that if the intent to steal was formed after the entry the entry was authorized, and there would then be no burglary. S. v. Howard, 64 S. C. 344, 42 S. E. 173, 58 L. R. A. 685.

§ 114. "In the Night-time."

(N. Ham. Superior Ct. of Judicature, 1839.) Evidence. Indictment for burglary. Verdict, guilty. Defendant contended that there was no proof of the time of the act. The only testimony on that point was by the housewife, that she saw the firkin of butter after dark and that it was gone when she got up in the morning. The court held the evidence sufficient to sustain the verdict, though it did not appear what the witness meant by "after dark" nor when she got up in the morning. As to what is night-time the court said: "There is no intervening time between the night and the day; and when the light of the latter is entirely gone, and the great characteristic which distinguishes it from night no longer exists, the day terminates with it. The next day commences with the earliest dawn, and the night of course ends at that time. That the matter does not depend upon the degree of light, and the ability to distinguish objects at the time, is evident, because the light of the moon, however bright it may be, makes no difference." Per PARKER, C. J. Judgment affirmed. S. v. Bancroft, 10 N. H. 105, F. 266, Kn. 249.

(Mich. Sup. Ct., 1893.) Window Unlocked in Daytime. GRANT, J. The respondent was convicted of burglary under § 9132, How. St. The evidence on the part of the people tended to show that the owner of the dwelling-house occupied the front room for a shoe shop, and the rear and overhead part as a dwelling. The shop was upon the ground floor, and had two windows, each about four feet from the ground. These windows had double sash; were without pulleyweights, and were fastened when raised, and bolted when down, by stops operated by springs. When the windows were closed, the springs threw the bolts into the slots in the cases, so that the window could not be raised without drawing the bolt. One of the windows was opened during the night of October 8, and three pairs of shoes were stolen. It was contended on behalf of the respondent that no breaking or entering in the night-time was es

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tablished. When a merchant enters his store in a city at the usual hour in the morning, though it be after daylight, and finds that it has been broken open and entered from the front door or window, it is contrary to good sense to say that the crime might have been committed after daylight, and therefore, the court must direct an acquittal. Such crimes are not committed in broad daylight. The theory of the prosecution was that the respondent went in the shop, either on the 6th or 7th of October, and raised the window just enough to prevent the bolt entering the slot (and there was evidence to sustain it). It is insisted that even if this was so and the respondent raised the window on the following night, it did not establish the crime of burglary. We cannot agree to this contention. # Affirmed. P. v. Dupree, 98 Mich. 26,

56 N. W. 1046, Mi. 909.

§ 115. "With Intent to Commit a Felony Therein."

(Eng. Assize, 1770.) To Disable Horse. Dobbs was indicted for burglary in breaking and entering the stable of Bayley, part of his dwelling-house, in the night, with a felonious intent to kill and destroy a gelding of one A. B., there being. It appeared that the gelding was to have run for forty guineas, and that the prisoner cut the sinews of his foreleg to prevent his running, in consequence of which he died. PARKER, C. B., ordered him to be acquitted; for his intention was not to commit the felony, by killing and destroying the horse, but a trespass only to prevent his running; and therefore no burglary. But the prisoner was again indicted for killing the horse, and capitally convicted. Dobbs's Case, 2 East P. C. 513, B. 181, Ke. 176.

(Eng. C. C. R., 1782.) To Recapture Goods. Prisoners were indicted for breaking and entering a dwelling-house at night to steal the goods of Hawkins, an excise officer, who had seized 17 bags of tea at Smith's shop, as being an illegal shop. The witnesses said they supposed the tea belonged to Smith and that the taking was in his company or by his procurement, and the jury found that the prisoners intended to take the tea on behalf of Smith. In Easter term, 1782, all the judges held that the indictment could not be supported, there being no intent to steal, however outrageous the behavior of the prisoners was in thus endeavoring to get back the goods of Smith. R. v. Knight, 2 East P. C. 510, B. 220, C. 111, Ke. 177.

Compare Fort v. S., § 143, taking cotton from house to get credit for picking it.

(Vt. Sup. Ct., 1844.) To Commit Adultery. WILLIAMS, Ch. J. The respondent was indicted for burglary, and was convicted on the second count-which charges him, in substance, with breaking and entering a dwelling-house in the night-time, with intent to commit.

adultery. Adultery was not a felony at common law, nor a crime to be punished in the common law courts. Neither does our statute make it felony. Nor does it come within any definition of felony, which can be found. Until the legislature think proper to declare the transaction, of which the respondent was found guilty, an offense, we cannot determine it so to be. Judgment reversed and arrested. S. v. Cooper, 16 Vt. 551, Ke. 176, Kn. 251.

(Ill. Sup. Ct., 1888.) To Get Drink. Defendant had been in the saloon, which it was alleged he was attempting to enter, on Sunday morning, and obtained a drink. He went out, and, on returning the same morning, found the door closed, and was seen with his body leaning half over the top of a window, which had been left down, and, on being asked what he was doing, said he wanted whiskey. He was found guilty of attempting to enter the saloon to steal. The judgment was reversed on error, because it was evident that he only wanted another drink; and probably he thought, as he testified, that someone was in there, and was playing "shenanagen" on him. Fiester v. P., 125 Ill. 348, 17 N. E. 748.

Other Cases: Entering house to carry away goods before embezzled (R. v. Dingley, § 130); to cut off a man's ear (C. v. Newell, § 101); to get intercourse with woman by impersonating her husband (R. v. Jackson, § 102; Wyatt v. S., § 102).

Guest stealing at night from hotel bar-room does not show entry with intent: S. v. Moore, § 36. Intent to take what he might find, though little in fact there: Harvick v. S., § 41.

ARSON.

§ 116. Defined. Arson is maliciously and voluntarily burning the house of another by night or by day. 3 Coke Inst. c. 15, p. 66; 1 Hale P. C. 566.

§ 117. "Maliciously and Voluntarily.'

(Eng. Assize, 1799.) Burning Beyond Intention. On indictment for a misdemeanor in setting fire to T.'s house occupied by defendant, counsel for the prosecution said in opening, that defendant set fire to the house to defraud the Phoenix Ins. Co., but the fire spread to and burned down several adjoining houses of others. Upon which, BULLER, J., said that if other persons' houses were in fact burned, the prisoner was guilty of felony, if at all, though he only set fire to his own; and the misdemeanor being merged in the felony, he could not be convicted on this indictment; and therefore directed an acquittal. Isaac's Case, 2 East P. C. 1031, B. 799.

(Ala. Sup. Ct., 1873.) To Escape Jail. Appellant was convicted of arson in burning a hole in the floor of the jail where he was confined on charge of assault with intent to murder. He controlled the fire with water furnished him to drink and wash with. When the hole was burned nearly through the floor the sheriff discovered and extinguished the fire. The question was, whether burning to escape and without intent to consume the building, would be arson. The court held, that, the burning being sufficient, the intent was no excuse, at least in view of the fact that it was an act done in attempting to commit another felony, prison breach. "Was it done wilfully? This term means less than maliciously, and more than intentionally or designedly. It means unlawfully, and to some extent wickedly. All of the authorities agree, that where the firing is done with the intention of committing any felony, it is arson. The guilt or innocence of this defendant is not dependent upon whether he was in the commission of a different felony or not. He intentionally and designedly set fire to the jail, in order to accomplish an unlawful purpose, and consequently the burning was wilfully done. It would not be safe to graduate his offense by the extent of the burning he intended to do, because, as far as intention constitutes the crime, the criminality is the same whether the house is burned slightly or consumed. The lives and property of other persons cannot be made dependent upon his supposition of how much burning he can do without consuming the house. Per SAFFOLD, J. Judgment affirmed. Luke v. S., 49 Ala. 30, 20 Am. Rep. 269, Kn. 238.

§ 118. "Burning."

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(Eng. C. C. R., 1759.) Paper in Attic Burned. A prisoner being indicted on 9 Geo. 1, c. 22, for setting fire to an outhouse commonly called, a paper-mill; it appeared that he had only set fire to a large quantity of paper, which was drying in a loft annexed to the mill, and that no part of the mill itself was burned. The judges thought the case not within the statute. R. v. Taylor, 1 Leach C. L. No. 25, 2 East P. C. 1020.

(Eng. Assize, 1842.) Fire Set on Floor. In a case of arson, it appeared that a small fagot was set on fire on the board floor of a room, and the fagot was entirely consumed; and that the boards of the floor were scorched black, but not burnt, and no part of the wood of the floor was consumed. CRESWELL, J. R. v. Parker, 9 Car. & P. 45, is the nearest case 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 offense

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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. R. v. Russell, Car. & M. (41 E. C. L.) 541, Mi. 931.

(Mass. Sup. Judicial Ct., 1872.) Shingles Burned. On indictment for burning C's house, it appeared that defendant set fire to C's barn, which was entirely consumed, and that shingles on the house burned in two places, and further damage was prevented only by persons on the roof constantly watching and keeping it wet. The judge refused to instruct the jury that they must find that the house had been on fire and some portion consumed and actually destroyed; but he did instruct them that in order to convict they must find that the substance of the wood on fire was actually burned. Verdict, guilty. Tucker excepted. WELLS, J. The instructions given to the jury were correct, and in accordance with the authorities; as well those cited for the defendant as those for the commonwealth. They required the jury to find that some portion of the dwelling-house had been actually on fire and burned. To have required them to find something more, by use of the terms "consumed" and "destroyed," as prayed for, would have been to go beyond the provisions of the statutes, and to leave the jury with no precise definition of that which was necessary to constitute the offense. Exceptions overruled. C. v. Tucker, 110 Mass. 403, B. 800.

(Tex. Ct. of App., 1891.) Smoked and Scorched Walls. On trial for arson three witnesses testified that the floor was burned or charred in one place, that the walls of the house were smoked and scorched, but could not say that they caught fire. Two others testified that the house did not catch fire or burn, that coal-oil had been poured on the bed and ignited, that they carried out the burning bed and bedding, and that nothing else was burned. It was held that the court erred in refusing to instruct the jury, as requested by the defendant, that "if they found that the house was simply scorched or smoked, then this would not be sufficient, and they should acquit the defendant." The court of appeals said: "If the fire had burnt a hole in the floor, as testified by some of the witnesses, then the offense was complete." Woolsey v. S., 30 Tex. App. 346, 17 S. W. 546, F. 246, Kn. 229.

§ 119. "The House."

(Conn. Sup. Ct. of Errors, 1850.) House Nearly Built. On trial for arson, defendant was convicted, and excepts to the refusal of the court to direct a verdict of acquittal. CHURCH, C. J. The statute of this state prescribes the punishment of arson, but it does not define the crime. We look to the common law for its definition.