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Arson, by the common law, is the wilful and malicious burning of the house of another. The word "house," as here understood, includes not merely the dwelling-house, but all outhouses which are parcel thereof. 1 Hale P. C. 570, 4 Bl. Com. 221, 2 Russ. Crimes 551. The building is described to be one built and designed for a dwelling-house constructed in the usual manner. It was designed to be painted, but was not yet finished, in that respect, and not quite all the glass were set in one of the outer doors. The building had never been occupied, and it was not parcel nor an appurtenant of any other. We think this was not a dwelling-house, in such a sense as that, to burn it, constituted the crime of arson. In shape and purpose it was a dwelling-house, but not in fact, because it had never been dwelt in-it had never been used, and was not contemplated as then ready for the habitation of man. We think it was the duty of the court to have instructed the jury as to the law of the matter, and leave it to them to say from the proof whether the building was a house, within the meaning of the law thus explained. New trial granted. S. v. McGowan, 20 Conn. 245, 52 Am. Dec. 336, F. 247, Kn. 232.

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Compare cases on burglary, § 112.

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§ 120. "Of Another."

(Eng. King's Bench, 1634.) Burning by Tenant in Possession. Wm. Holmes was indicted in London, for that, being possessed of a house there for 6 years yet enduring, remainder to S. for 3 years, remainder to II. in fee, he vi et armis the said house wilfully, maliciously, and feloniously burned, etc. On being arraigned at Newgate he was found guilty; but before judgment the indictment was removed by certiorari to this court. RICHARDSON, C. J., JONES, and BERKLEY, JJ., held that it was not felony to burn a house whereof he is in possession by virtue of a lease for years; for they said, that burning of houses is not felony unless that they are ædes alienæ; and therefore Britton, p. 16, Bracton, p. 146, and the book Assize, 27, Assize, pl. 44, mention that it is felony to burn the house of another; and 10 Edw. 4, pl. 14; 3 Hen. 7, pl. 10; 10 Hen. 7, pl. 1, and Powlter's Case, 11 Coke 29, which say that burning of houses generally is felony, are to be intended de ædibus alienis, et non propriis; and although the indictment be "ea intentione ad comburendum felonice, voluntarie, et malitiose," the houses of divers others contigue adjacentes," yet intent only without fact is not felony. Also BERKLEY and JONES, J.J., held that it cannot be said to be vi et armis when it is in his own possession. CROKE, J., said: Every indictment is vi et armis et contra pacem, where an act is done against the commonwealth; so it is where a servant runs away with goods committed to his trust above forty shillings, although properly it cannot be said to be vi et armis, because they were in

his custody. And in this case the ill consequence which might have fallen out by this act makes the offense the greater; and The Year Books in 10 Edw. 4, pl. 14; 3 Hen. 7, pl. 10; 11 Hen. 7, pl. 1; and Stanford P. C. 36; 11 Coke 29; 4 Coke 20a, put the case of burning of houses generally, and not of the burning of other men's houses; and it is an equal mischief in a commonwealth to burn his own in a city or vill as to burn the houses of others, for the danger which may ensue. But the other three justices resolved ut supra, that it was not felony; wherefore he was discharged thereof. But because it was an exorbitant offense, and found, they ordered that he should be fined £500 to the king, and imprisoned during the king's pleasure, and should stand upon the pillory, with a paper upon his head signifying the offense, at Westminster and at Cheapside, upon the market-day, and in the place where he committed the offense, and should be bound with good sureties to his good behavior during life. Holmes's Case, Cro. Car. 376, W. Jones 351, B. 797.

Servant burning at order of master for insurance: S. v. Haynes, p. 115.

(Eng. C. C. R., 1708.) Burned by Widow Before Dower Assigned While Possessed by Tenant. On an indictment for arson; in a dwelling-house in the possession of E. S. it appeared that the prisoner Elizabeth was the daughter of the prisoner Anne by a former husband, John Harris. From the evidence at the trial it was disclosed that John Harris died seised of the equity of redemption of this house, and of another adjoining to it, subject to a mortgage term for £20 and that the equity descended to his eldest son, a child left with other children under the care of their mother, the prisoner Anne, who was entitled to dower out of these houses, but no dower was ever assigned; that Anne, having the care of her son and his estate, let these houses to E. S. at the rent of £5 a year, and received the rent for some time; but having a large family of children, she was obliged to ask relief of the parish where she lived; that she was denied such relief on account of these houses, the parishioners insisting that the overseers of the poor should be let into the receipt of the rent before she could be entitled to any parochial relief; that thereupon she frequently declared that she would set the houses on fire, if the parish did not relieve her; that she had young children whom the parish could not punish, though they might punish her, and that she would order the least child she had to carry a coal of fire to burn the houses down. And many other declarations of the like kind she made which discovered an obstinate resolution in her to burn the houses rather than submit to the terms the parishioner insisted on. It appeared further that the prisoner Elizabeth set the house on fire by the direction of the prisoner Anne, who went from home on purpose to be absent at the time when the fact was committed. The jury found both the prisoners guilty; but a doubt arising by reason of the interest the prisoner Anne had in the house, the judge who tried the cause thought proper to respite judgment in order to take the opinion of the judges on the case, who, at a meet

ing of the judges at the chief justice's chambers, unanimously agreed that both the prisoners were guilty of felony. R. v. Harris, Foster C. L. 113, Mi. 928.

(Eng. C. C. R., 1780.) House of Tenant Burned by Him. In support of an indictment for wilfully and maliciously setting fire to and burning a certain dwelling-house, it was proved that the defendant was the tenant in possession under an agreement for a lease for 3 years, from a person who held under a building lease. Upon the jury finding the prisoner guilty the judge who tried the case respited the judgment to have the opinion of the judges on the question whether the conviction under these circumstances was legal. The judges, on the authority of Holmes's Case, Cro. Car. 376 [above], determined in the negative. R. v. Breeme, 1 Leach C. L. No. 109, 2 East P. C. 1026.

Acc. R. v. Pedley, 1 Leach 277, 2 East P. C. 1020.

(Eng. King's Bench, 1786.) By Pauper in Possession. The prisoner, a poor man, maintained by the parish, had, some time before the commission of the crime with which he was charged, been put by the parish officers to live in the house which he was accused of having set on fire, and was resident therein with his family at the time of the fact being committed, having the sole possession and occupation of it, but without paying any rent. All the judges held that it could not be considered as his house, and that he was properly convicted of the arson. Gowen's Case, 2 East P. C. 1027, 1 Leach C. L. (Ed. 4), p. 462n, Mi. 930.

(Mich. Sup. Ct., 1872.) Wife's House. Information for arson in burning the dwelling of defendant's wife. He was convicted and brings error. Though there was evidence that defendant had separated from his wife, the evidence on that point became unimportant, because the court instructed the jury that defendant could be convicted for burning his wife's house, though living with her. The correctness of this instruction is the only point. COOLEY, J.

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The statute provides that "every person who shall wilfully and maliciously burn in the night-time, the dwelling-house of another," etc., shall be punished, etc. Comp. Laws, § 5745.

There are Numerous Decisions as to what is meant by the dwellinghouse of another, as well at the common law as under like statutes to our own. Arson is an offense against the habitation, and regards the possession rather than the property. S. v. Toole, 29 Conn. 344. The house, therefore, must not be described as the house of the owner of the fee, if in fact at the time another has the actual occupancy, but it must be described as the dwelling-house of him whose dwelling it then is (2 East P. C. 1034; 4 Bl. Com. 220; Whart. Cr. Law, § 1638; 2 Bish. Cr. Law [2d Ed.], § 24; Holmes's Case, Cro. Car. 376; Spalding's Case, 1 Leach No. 108; C. v. Wade, 17 Pick. 395); even, it seems,

though the occupation be wrongful (R. v. Wallis, 1 Moody C. C. 344; S. v. Toole, 29 Conn. 344). It follows that a lessee could not be guilty of the felony in burning the premises occupied by him as such (2 East P. C. 1029; 2 Russ. Crimes 550; McNeal v. Woods, 3 Blackf. 485; S. v. Lyon, 12 Conn. 487; S. v. Fish, 27 N. J. Law 323; S. v. Sandy, 3 Ired. 570; 3 Greenl. Ev. § 55), while the landlord, during such occupation, might be (2 East P. C. 1023, 1024; Sullivan v. S., 5 Stew. & P. 175). A jail, it has been held, may be described as the dwelling-house of the jailor, living with his family in one part of it. P. v. Van Blarcum, 2 Johns. 105; Stevens v. C., 4 Leigh 683. And it seems that the wife, because of the legal identity with the husband, cannot be guilty of the offense in burning the husband's dwelling, even though at the time living separate from him. March's Case, 1 Moody C. C. 182, C. 484. This would doubtless be so held whenever the wife's domicil is regarded in law as identical with the husband's, which for many purposes is no longer the case when they live separate. It must be evident from this summary of the law on this subject that if the husband, living with his wife, has a rightful possession, jointly with her, of the dwelling-house, which she owns and they both occupy, he cannot, by common law rules, be guilty of arson in burning it. It remains to be seen

Whether the Statutes have Introduced any Changes which would affect the case. The statutes upon which the question arises are those for the protection of the rights of married women.

[Here his honor reviewed the statutes to prove that their policy is to protect the wife's property, but not to weaken the family unity.] Some of the legislation on the subject is exceedingly crude; some of it has injudiciously given powers to the wife in the disposition of property which it has prudently denied to the husband; but none of it makes the husband a stranger in law in the wife's domicil. The property is hers alone, but the residence is equally his; the estate is in her, but the dwelling-house-the domus-is that of both. If, therefore, the husband shall be guilty of the great wrong to his wife and family of setting fire to the house they inhabit, he is no more guilty of arson in so doing than the wife was at the common law for a like wrong to the dwelling-house of the husband. The case is a very proper one for a penal statute, but none has yet been enacted to meet it. The house, in legal contemplation, as regards the offense. under consideration, is the dwelling-house of the husband himself. But in so holding we do not decide that

If the Family Relation is Broken Up in fact, and husband and wife are living apart from each other, whether under articles of separation or not, the same exemption from criminal liability can. exist. There is much reason for holding that the wife's dwellinghouse can be considered that of her husband only while he makes it such in fact. New trial granted. Snyder v. P., 26 Mich.

106, 12 Am. Rep. 302, F. 249, Kn. 234.

§ 133.

§ 126. Classification, 400.

§ 127. "As Servant," 400.

§ 128. "In Making an Exchange," 404.

§ 129.

"In Some Other Capacity." 408.

§ 130. "Where the Accused Received the Property from Another," 410.

§ 131. "Delivered by Mistake," 415.

§ 132. "Finding Lost Property," 418. "Fraud," 424.

§ 134. "Without Consent," 438.

§ 135. "Carrying Away," 444.

§ 136. "Another's," 447.

§ 137. "Valuable," 451.

§ 138. "Personal," 452.

§ 139. "Property," 459.

§ 140. "Claim of Right," 466.

"With Intent."

§ 141.

General Rule, 468.

§ 142. Cases of Bailee's Breaking Bulk, 470.

§ 143. "To Deprive the Owner of His Property," 476.

§ 144. "Permanently," 481.

§ 145. "Convert It to the Taker's Own Use," 483.

ROBBERY.

§ 146. Defined, 485.

§ 147. "Felonious Taking," 485.

§ 148. "In His Presence," 486.

§ 149. "By Violence or Putting in Fear," 488.

LARCENY FROM THE PERSON.

§ 150. In General, 490.

LARCENY FROM THE HOUSE. § 151. In General, 492. EMBEZZLEMENT.

$152. In General, 498. RECEIVING STOLEN GOODS.

$153. The Statutes, 506.

§ 154. "Receive," 506.

§ 155. "That Shall be Feloniously Taken or Stolen," 511.

§ 156. "Knowing the Same to be Stolen," 514.

§ 157.

"Shall be Taken and Deemed an Accessory," 515.

CHEATING AT COMMON LAW.

§ 159.

Definition, 518.

§ 160. "It Includes as Well the Unsuccessful Attempt," 518.

§ 161. "It is the False Making." 518.

§ 162. "Materially Altering," 523.