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CHAPTER THE FORTY-SECOND.

Offence of

arson at common law.

There must be an actual burning.

It is not necessary that any flame should be visible.

OF ARSON AND THE BURNING OF BUILDINGS, MINES, SHIPS, CORN,

TREES, &c.

ARSON is, at common law, an offence of the degree of felony; and has been described as the malicious and wilful burning the house of another. (a) The burning a party's own house does not come within this definition: but the burning a man's own house in a town, or so near to other houses as to create danger to them, is a great misdemeanor at common law. (b) Barns, with corn or hay within them, have been considered as so much entitled to the protection of the law, that though distant from a house, and no part of the mansion, the burning of them is felony at common law. (c)

The burning necessary to constitute arson of a house at common law, must be an actual burning of the whole or some part of the house. Neither a bare intention, nor even an actual attempt to burn a house by putting fire into, or towards it, will amount to the offence, if no part of it be burned; but it is not necessary that any part of the house should be wholly consumed, or that the fire should have any continuance; and the offence will be complete, though the fire be put out, or go out of itself. (d)

To constitute a setting on fire, it is not necessary that any flame should be visible. Upon an indictment for setting fire to an outhouse, it appeared that the roof of the outhouse was made of pieces of wood with straw put upon them, and that smoke was seen to issue out of the bottom of the roof; there was a good deal of smoke in the straw; some handfuls of straw were pulled out, and there were sparks in the straw when on the ground, but no sparks were seen in the straw when on the roof; no flame was seen; a ball of linen was pulled out of the roof with the straw; smoke and sparks came from the ball; the ball was trod out; the ball was burnt right through on one side; the fire on the roof was extinguished by throwing some water upon it. On the following day, two half matches were found in the straw on the ground, which was pulled from the roof, but there was no appearance of burning in these. On the same day, several handfuls of straw were taken out of the roof,

(a) 3 Inst. 66. 1 Hale, 566. 1 Hawk, P. C. c. 39. 4 Black. Com. 220. 2 East, P. C. c 21, s. 1, p. 1015.

(b) 1 Hale, 568, 569. 1 Hawk. P. C. c. 39, s. 15. 4 Black. Com. 221. 2 East, P. C. c. 21, s. 7, p. 1027.

(c) 3 Inst. 67. Barham's case, 4 Co. 20 a.

Sum. 86. 1 Hawk, P. C. c. 39,

s. 1. 4 Black. Com. 221.

1 Hale,

(d) 3 Inst. 66. Dalt. 506. 568,569. 1 Hawk. P. C. c. 39, ss. 16, 17.

2 East, P. C. c. 21, s. 4, p. 1020.

and there was burnt straw in some of these handfuls; and on the same day, on examining the straw lying on the ground down by the building, there were some burnt ashes, and the ends of some of the straws were burnt, and the ends of some of them dropped off like a powder, and the ends of some of the straws had been reduced to ashes; no part of the wood, either in the pieces on which the straw was laid, or in the posts of the building, was burnt. Upon a case reserved upon the question, whether this was a setting on fire, the Judges held the conviction right. (e)

So where the prisoner was indicted under the 1 Vict. c. 89, s. 3, for setting fire to a house, and it appeared that the floor near the hearth had been scorched; it was charred in a trifling way; it had been at a red heat, but not at a blaze; it was held that this was a sufficient burning. (f)

cious and

wilful.

The burning must also be malicious and wilful; otherwise, it is The burning only a trespass. No negligence or mischance, therefore, will amount must be malito such burning. (g) And for this reason it has been holden, that if an unqualified person should, in shooting at game, happen to set fire to the thatch of a house, it will not be a burning of this description. (h) And so if a man unlawfully shoot at the poultry of another: (i) but it is observed, that in such case it should seem to be understood that the party did not intend to steal the poultry, but merely to commit a trespass; for otherwise the first intent being felonious, the party must abide all the consequences. (j)

and wilful

burning need not correspond with the precise intent of the party.

The malicious and wilful burning effected need not correspond The malicious with the precise intent or design of the party. If A. have a malicious intent to burn the house of B., and in setting fire to it burn the house of C. also, or if the house of B. escape by some accident, and the fire take in the house of C. and burn it, this shall be said in law to be the malicious and wilful burning of the house of C., though A. did not intend to burn that house. (k) And accordingly it has been said, that if one man command another to burn the house of J. S., and he do so, and the fire thereof burn another house, the commander is accessory to the burning such other house. (1) So it has been held that if a person set fire to a stack, the fire from which is likely to communicate to a barn, and it does so, and the barn is burnt, he is in point of law indictable for setting fire to the barn. (m) So where

(e) Rex v. Stallion, R. & M. C. C. R. 398. See this case, post, p. 559. (f) Reg. v. Parker, 9 C. & P. 45, Parke, B., and Bosanquet, J.

(g) 3 Inst. 67. 4 Black. Com. 222.

(h) 1 Hale, 569, where this is laid down contrary to the opinion of Dalt. c. 105, p. 506.

(i) Id. ibid.

(j) 2 East, P. C. c. 21, s. 3, p. 1019. Ante, vol. 1, p. 540.

(k) 1 Hale, 569. 3 Inst. 67. 1 Hawk. P. C. c. 39, s. 19. And the indictment may charge it accordingly.

(1) Plowd. 475. 2 East, P. C. c. 21, s. 7, p. 1031.

(m) Rex v. Cooper, 5 C. & P. 535, Parke. J. Lord C. J. Tindal, in his charge to the Bristol grand jury, 1832, 5 C. & P. 266, note, said, "Nor will it be

necessary to prove that the house the subject
of the indictment in any particular case,
was that which was actually set on fire by
the prisoner. It will be sufficient to con-
stitute the offence if he is shown to have
feloniously set on fire another house, from
which the flames communicated to the rest.
No man can shelter himself from punish-
ment on the ground that the mischief
which he committed was wider in its con-
sequences than he originally intended."
5 C. & P. 266, note. See Curtis v. The
Hundred of Godley, 3 B. & C. 248. But
in Turner's case, 1 Lewin, 9, it is said
that Parke, J., left it to the jury whether
the prisoner intended by setting fire to a
stack of haulm to set fire to a building
close adjoining, and that the judges were of
opinion this direction was right. In R. &
M. C. C. R. 239, this point is not noticed.

It may be effected by setting fire to the party's own house.

The fire must

the prisoners set fire to a summer house which was in a wood, and some of the trees overhung it, and their branches were burnt by the fire, which consumed the summer house and also burnt some of the trees, it was held that the prisoners might be convicted under the 7 & 8 Geo. 4, c. 30, s. 17, of setting fire to the wood. (n)

And such malicious and wilful burning of the house of another may be by the means of setting fire to the party's own house; and this, though it should appear that the primary intention of the party was only to burn his own house. If in fact other houses 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 consequences immediately and necessarily following from the original act done, the offence will be felony. (0) Thus where the defendant was indicted for a misdemeanor, in burning a house in his own occupation, such house being alleged to be contiguous and adjoining to certain dwelling-houses of divers liege subjects, &c.; and the facts of the case, as opened by the counsel for the prosecution, appeared to be that the defendant set fire to his own house, in order to defraud an insurance office, and that in consequence, several houses of other persons, adjoining to his own, were burnt down; Buller, J., said, that if other persons' houses were in fact burnt, although the defendant might only have set fire to his own, yet under these circumstances the prisoner was guilty, if at all, of felony, (the misdemeanor being merged) and could not be convicted on this indictment; and, therefore, he directed an acquittal. (p) And in a case of a similar kind, which occurred about the same time, Grose, J., in passing sentence in the court of King's Bench, said, that if it had so happened, that any of the neighbouring houses had been set on fire in consequence of the defendant's wilful and malicious act in setting fire to his own house, (which was proved to have been done in order to cheat the insurance office,) it would clearly have amounted to a capital felony, and his life would have paid the forfeit. (g)

In order, however, to constitute the felonious offence of arson at burn the house common law, the fire must burn the house of another. Therefore, it has been holden not to be felony in a party to burn a house, whereof he was in possession under a lease for years. (1)

of another.

A wife setting fire to the house of her husband.

And it has been held, that a wife who set fire to her husband's house, was not guilty of felony, within the 7 & 8 Geo. 4, c. 30, s. 2. An indictment described the prisoner as the wife of J. March, and charged her with setting fire to a certain house of the said J. March, with intent to injure him, against the statute. It appeared that March and his wife had lived separate for about two years, and previous to the act, when she applied for the candle with which it was done, she said it was to set her husband's house on fire, because she wanted to burn him to death. Upon a case reserved upon the question, whether it was an offence within the 7 & 8 Geo. 4, c. 30, s. 2,

(n) Reg. v. Price, 9 C. & P. 729,
Gurney, B. The summer house in this

case was not a building, the burning whereof
was a felony.

(0) 2 East, P. C. c. 21, s. 8. p. 1031.
And see the case of Coke v. Woodburne,
6 St. Tri. (by Hargr.) 222.

(p) Isaac's case, cor. Buller, J., 1799. 2 East, P. C. c. 21, s. 8, p. 1031.

(9) Probert's case, B. R. Mich. T. 40 Geo. 3. 2 East, P. C. c. 21, s. 7, p. 1031.

(r) Holmes's case, Cro. Car. 376. W. Jones, 351.

for a wife to set fire to her husband's house for the purpose of doing him a personal injury, the conviction was held wrong, the learned Judges thinking that to constitute the offence, it was essential that there should be an intent to injure or defraud some third person, not one identified with herself. (s)

And it was decided, that a person in possession of a copyhold dwelling-house, could not be guilty of arson, by burning it, although he had a long time before surrendered it into the hands of the lord of the manor, to the use of another person, his heirs, and assigns, for securing the payment of money borrowed: for it was considered, that while the tenant continued in possession, it was his own house. (t) And upon the same principle it was decided, that a tenant in possession under an agreement for a lease for three years, from a person who held under a building lease, was not guilty of arson by burning the house. (u)

But if a landlord, or reversioner, sets fire to his own house of which another is in possession, under a lease from himself, or from those whose estate he hath, it shall be accounted arson; for, during the lease, the house is the property of the tenant. (v) And it was determined, that a widow entitled to dower, but not having it assigned, from a house, the equity of redemption of which had descended from her husband to his eldest son, for whose benefit she had let it and received the rent, was guilty of arson, by burning it while in the possession of her tenant. (w)

It should be observed, however, that a mere residence in a house, without any interest therein, will not prevent it from being considered as the house of another. As where the prisoner was a poor man, maintained by a parish, and had, some time before the commission of the crime, been put by the parish officers to live in the house which he was charged with burning, 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 payment of any rent: all the Judges held that it could not be considered as his house; and that he was properly convicted of the arson. (x)

It will be presently seen that the questions as to the possession and ownership of the house in which the arson is committed, are of less importance under the statute law; as the 1 Vict. c. 89, makes the setting fire to a house, &c. with intent to injure or defraud any person, a felony, whether such house, &c. shall be in the possession of the person so setting fire thereto, or of others.

(s) Rex v. March, R. & M. C. C. R. 182. The 7 & 8 Geo. 4, c. 30, s. 2, contained the words, "whether the same or any of them respectively shall then be in the possession of the offender," which are also found in the 1 Vict. c. 89, s. 3. See Rex v. Wallis, post, p.566.

(t) Spalding's case, Bury Lent Ass. 1780. East. T. 1780. 1 Leach, 218. 2 East, P. C. c. 21, s. 6, p. 1025.

(u) Breeme's case, O. B. 1780, Trin. T. 1780. 1 Leach, 220. 2 East, P. C. c. 21, s. 6, p. 1026. And this and several of the preceding cases were recognised in Pedley's case, K. B. 1782. 1 Leach, 242, where Lord Mansfield said that Holmes's case, (ante, note (r),) was confirmed to be

good law, though he very much lamented
that the law was so settled; and the bias
of his mind was in favour of Mr. J. Foster's
opinion in Harris's case, Fost. 115. In
a case which occurred shortly afterwards,
Lord Mansfield said, that "it was certainly
true that it could be no felony in the de-
fendant to burn a house of which he was in
possession." Scofield's case, K. B. Hil.
T. 24 Geo. 3. Cald. 397. 2 East, P. C.
c. 21, s. 7, p. 1028.

(v) Fost. 115. 4 Black. Com. 221.
(w) Harris's case, 1753. Fost. 113.

2 East, P. C. c. 21, s. 6, p. 1023.

(x) Gowen's case, 1786. 2 East, P. C. c. 21, s. 6, p. 1027. Rickman's case, ibid., s. 11, p. 1034.

Of what is included in the term house.

Misdemeanor

in burning a man's own house, when

contiguous to others.

Punishment for felony not punishable by any statute.

1 Vict. c. 89. Setting fire to a dwelling

house, any person being therein..

Setting fire to a church or

chapel, warehouse, &c.

The remaining inquiry concerning arson at common law, is as to the meaning of the word house. And this, it may be briefly observed, extends not only to the dwelling house, but to all outhouses, which are parcel thereof, though not adjoining thereto, or under the same roof; (y) of which kind of outhouses mention has been made in a former part of this work. (2) It appears that the indictment need not charge the burning to be of a mansion house, but only of a house. (a)

It has been already stated, that the burning a man's own house in a town, or so near to other houses as to create danger to them, though not within the definition of arson, is yet a great misdemeanor at common law. (b) This doctrine has been acted upon in several cases; (c) and, in one of the most recent, Grose, J., in pronouncing the sentence of the Court of King's Bench, said, that though by a lenient construction of the law of arson this offence was holden not to be felony, yet it was a misdemeanor of great magnitude, and deserving of the most exemplary punishment. (d)

For the punishment of felonies upon which no punishment may be inflicted by statute, the general provision of the 7 & 8 Geo. 4, c. 28, s. 8, enacts, "that every person convicted of any felony for which no punishment hath been or hereafter may be specially provided, shall be deemed to be punishable under this act, and shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years; and, if a male, to be once, twice, or thrice publicly or privately whipped (if the Court shall so think fit) in addition to such imprisonment." And by sec. 9, the Court may order hard labour, or solitary confinement as part of such imprisonment. (e) We may now proceed to the enactments of the 1 Vict. c. 89. (ee) That statute by sec. 2 enacts, that "whosoever 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." (f)

By sec. 3, "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, (9)

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(c) Holmes's case, Cro. Car. 376.
field's case, Cald. 397. 2 East, P. C.
c. 21, s. 6, p. 1023, and s. 7, p. 1028. It
appears from these cases that where an in-
dictment charges an act to have been done
with a felonious intent, and the jury find a
verdict of guilty; if the charge, as laid, do
not amount to felony, but amounts in law
to a misdemeanor, the court will pronounce
judgment as for that offence.

(d) Probert's case, B. R. Mich. 40
Geo. 3. 2 East, P. C. c. 21, s. 7, p. 1030.
The sentence pronounced was two years'
imprisonment in Newgate, to stand once
during that time in the pillory, and to give

sureties for good behaviour for seven years from the expiration of the imprisonment.

(e) See note (u), ante, p. 448, for the present punishment under the 7 & 8 Geo. 4, c. 28, ss. 8 & 9, and 1 Vict. c. 90, s. 5.

(ee) The 1 Vict. c. 89, s. 1, repeals the 7 & 8 Geo. 4, c. 30, ss. 2, 5, 9, 11, and part of ss. 17 and 26. and

(f) This provision is entirely new, it should be observed that the section is silent about the intent with which the act is done. In Reg. v. Jeans, Gloucester Spr. Ass. 1842, the prisoner was convicted under this section before Cresswell, J., although there was no evidence to show that he knew that any person was in the house at the time when he set fire to it. MSS. C. S. G.

(g) The 7 & 8 Geo. 4, c. 30, s. 2, had the words " duly registered or recorded," in this place.

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