- possession, and not merely a wrong in destroying a valuable property, when the Legislature extends the limits of the crime we must construe their enactments strictly. (a)

By the 32 & 33 Vic., c. 22, s. 3, the setting fire to any house, whether the same is then in the possession of the offender or in the possession of any other person, is made felony; and now, under this Statute, it is immaterial whether the house be that of another or of the defendant himself.

The words in this Statute are "set fire to" merely, and, therefore, it is not necessary to aver in the indictment that the house, etc., was burnt, nor is proof required that it was actually consumed. (6) But within this Act, as well as to constitute the offence of arson at common law, there must be an actual burning of some part of the house, a bare intent or attempt to do it is not sufficient. (c)

Where a small faggot, having been set on fire on the boarded floor of a room, the boards were thereby "scorched black but not burnt," and no part of the wood was consumed, this was held not a sufficient burning. (d) Now, by s. 8 of the Statute, setting fire to any matter or thing, being in, against, or under any building, under such circumstances, that if the building were thereby set fire to, the offence would amount to felony, is made felony.

The burning must also be malicious and wilful, otherwise it is only a trespass. No negligence or mischance, therefore, will amount to such a burning. (e) But malice against the owner of the property is not necessary. (ƒ) The decisions with respect to burglary apply also to

(a) M'Nab, v. M'Grath, 5 U. C. Q. B. O. S. 522, per Robinson, C. J. (b) R. v. Salmon, R. & R. 26; R. v. Stallion, 1 Mood. C. C. 398; Arch. Cr. Pldg. 509.

(c) Ib.

(d) R. v. Russell, C. & Mar. 541.

(e) 2 Russ. Cr. 1025.

(f) 32 & 33 Vic. c. 22, s. 66.

arson, as to what may be considered a house, shop, etc. (a)

A shop is defined to be a place where things are publicly sold. It also has another signification, as a room where some kind of manufactures are carried on, as a shoemaker's shop, etc.; but this sense is merely confined to common speech, and the Legislature does not generally use the word in this sense, and in the 3 Wm. 4, c. 3, they clearly did not, because buildings used in carrying on any trade or manufacture were protected under a separate and distinct provision, although the term shop had been used before, and, in fact, by their adding the qualification used, in carrying on any trade or manufacture, the Legislature evinced that they intended to have reference to the purpose for which the building was actually used, at the time of the offence. (b)

Where, on an indictment under this Statute, it appeared that the building set fire to had not, for a year or more, been occupied as a shop; it contained some iron in the cellar, but was otherwise not inhabited for any purpose; and it was contended that the building was a shop, with. in the meaning of the Statute, but, per Robinson, C.J., (c) it was clearly not the intention of the Legislature to make the burning of any and every building arson, and the reason which may have led to including dwellinghouses, barns, or shops, can only be intended to apply to buildings occupied, as dwelling-houses, barns, or shops. Not that a dwelling-house, etc., can only be regarded as being legally such at the very moment when it is actually being used for its appropriate purpose. If left for a moment animo revertendi it is still the dwelling-house of its possessor. A mere building, though fitted up, or intend

(a) M'Nab v. M'Grath, 5 U. C. Q. B. O. S. 522.

(b) M Nab v. M'Grath, supra, 520.

(c) Ib. 519.

ed, for any of these purposes, does not acquire its character until it has been appropriated to its proper purpose, and, after it has been so appropriated, the use must be continued to the time of the offence, or, if discontinued, must be discontinued under such circumstances as indicate an intended immediate resumption.

A small shanty, about twelve feet square, slightly constructed with boards placed upright, having a shed-roof of boards but no floor, nor any windows or openings for windows, having, however, a door not hung but fastened with nails, being used by a carpenter who was putting up a house near it, as a place of deposit for his tools and window-frames which he had made, but in which no work was carried on by him, and which had not been used as a workshop at any time, to any degree, was held not a building used in carrying on the trade of a carpenter, within the 4 & 5 Vic., c. 26, s. 3. (a)

A building, within the 32 & 33 Vic., c. 22, s. 7, need not necessarily be a completed or finished structure: it is sufficient that it should be a connected and entire structure. (b)

The building set fire to was one of seven, built in a row, intended for dwelling-houses, and built, in part, of machine-made bricks, all the walls, external and internal, of the house, being built and finished, the roof being on and finished, and a considerable part of the flooring laid. The internal walls and ceiling were prepared, and ready for plastering, and the house was in a forward state towards completion, but was not completed:-Held to be a building within the meaning of this section.

Where the question of building or no building is properly left to the jury, their finding is conclusive. (c)

(a) Reg. v. Smith, 14 U. C. Q. B. 546.

(b) Reg. v. Manning, L. R. 1 C. C. R. 338.

(c) Ib.

Where the offence consists of the setting fire to the house of a third person, the intent to injure that person is inferred from the act, for every person is deemed to intend the natural consequence of his own act. (a) But this doctrine can only arise where the act is wilful; and, therefore, if the fire appear to be the result of accident, the party who is the cause of it will not be liable. On the other hand, where the defendant is charged with setting fire to his own house, the intent to defraud cannot be inferred from the act itself, but must be proved by other evidence. (b)

It has been held, on an indictment under the Con. Stats. Can., c. 93, s. 4, against a person for setting fire to his own house, that it was necessary to prove an intent to injure or defraud, in order to shew the act to be unlawful and malicious, within the meaning of the Statute. (c) The Court will infer the act to be unlawful and malicious when the intent to injure or defraud is shewn. (d)

An indictment, under this Statute, need not have alleged the intent to injure or defraud, as the Statute did not make the intent part of the crime, and differed from the English in this respect. (e) The 32 & 33 Vic., c. 22, s. 3, makes the intent part of the crime, and it is apprehended that the intent must now be alleged in the indictment, notwithstanding the above cases. (f)

In Greenwood's case, the prisoner being indicted for unlawfully and maliciously attempting to burn his own house, by setting fire to a bed in it, it appeared in evidence that the house in question was so closely adjoining

(a) See R. v. Farrington, R. & R. 207.

(b) See Arch. Cr. Pldg. 511-2; R. v. Gilson, R. & R. 138.

(c) Reg. v. Bryans, 12 U. C. C. P. 161.

(d) Ib.

(e) Reg. v. Bryans, supra; Reg. v. Greenwood, 23 U. C. Q. B. 250. (f) See Arch. Cr. Pldg. 508.

to another house, both being of wood, and the space between the two being only a few inches, that it would be next to impossible that the one should be burnt without also burning the other; that the dead body of a woman was in the bed at the time; that her death had been caused by violence; that she had been recently delivered of a child, whose body was found in the kitchen, and that she had lived in the house since it had been rented by the prisoner, who frequently went there at night. It was also shewn that the prisoner had been indicted for the murder of this woman, and acquitted, and the record of his acquittal was put in. This evidence was objected to, as tending to prejudice the prisoner's case; but the Court held it admissible, for, the house being the prisoner's, it was necessary to shew that his attempt to set fire to it was unlawful and malicious, and that these facts would prove it, and might also satisfy the jury that, the murder being committed by another, the prisoner's act was intended to conceal it. (a)

The intention must be to injure some person who is not identified with the defendant. Therefore, a married woman cannot be indicted for setting fire to the house of her husband, with intent to injure him. (b) An indictment on s. 3 of the 32 & 33 Vic., c. 22, must allege the intent to injure or defraud. (c)

Where the prisoners are indicted under the 32 & 33 Vic., c. 22, s. 3, for unlawfully, maliciously, and feloniously setting fire to a shop "of and belonging to" one of the prisoners, the averment of ownership is an immaterial averment, which may be rejected as surplusage, and need not be proved; and an intent to injure another person, whose name is not stated in the indictment, may

(a) 23 U. C. Q. B. 250.

(b) Reg. v. March, 1 Mood. C. C. 182; Arch. Cr. Pldg. 512. (c) Reg. v. Paice, 1 C. & K. 73.