CHAPTER III.

ARSON.

[The statutes contained in prior editions under this head are, for purposes of condensation, here omitted. They will be found in the sixth edition, between § 1621 and § 1657; and the adjudications upon them, and on succeeding statutes will be given in the following pages.]

ARSON AT COMMON LAW, § 1658. 1. BURNING, § 1659.

1. EXTENT TO WHICH FIRE MUST WORK,

§ 1659.

II. PROPERTY BURNED.

1. DWELLING - HOUSE, OUT HOUSE,

BARN, ETC., § 1667.

2. OWNERSHIP, § 1671.

2. AGENCY THROUGH WHICH FIRE IS III. INDICTMENT, § 1673.

COMMUNICATED, § 1662.

3. MALICE, ETC., § 1663.

4. BURNING ONE'S OWN HOUSE, § 1664.

5. PROOF OF INTENT, § 1665.

1. TECHNICAL TERMS, § 1673.

2. BUILDING BURNED, § 1674.

3. OWNERSHIP, § 1675.

4. INTENT TO DEFRAUD CORPORATION, § 1677.

ARSON AT COMMON LAW.t

§ 1658. ARSON is the malicious and wilful burning of the house or out-house of another man. u And whatever appurtenance to a house is so near to it that flames in one might be communicated to another, is an out-house under this definition. It is also arson, at common law, to burn a barn stored with hay or grain. w

I. BURNING.

1. Extent to which Fire must work.

§ 1659. The offence is consummated by the least burning of the house. The charring of the floor to the depth of an inch is

See Wharton's Precedents, 389- Dev. & Bat. 185; R. . Jones, 2 409. Moody, 308.

u 4 Blac. Com. 220.

v Gage v. Shelton, 3 Rich. 242. See 2 East P. C. 1020; State v. Stewart, 4 Conn. 47; State v. Terry, 4

VOL. II.- -22

w 1 Hale P. C. 567; R. v. Reader, 1 Moody, 239; Sampson v. Com. 5 W. & S. 385. Post, § 1668.

337

[BOOK V. certainly sufficient, x and it makes no matter how soon the fire be extinguished. y

§ 1660. "The burning necessary to constitute arson of a house at common law," says Sir William Russell, z "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 should be put out, or go out of itself." a

The corpus delicti in a case of arson is the criminal burning of the house; and this should be abundantly established before confessions of an accused party should be received to show that he was the incendiary. b

Causal connection necessary between ignition and combustion. -As has been already shown, b1 there must be a causal connection between the ignition and combustion. The defendant is not responsible if the combustion takes place from the agency of extraordinary and incalculable natural causes, or from the interposition of the independent, self-determining agency of another person.

§ 1661. On the trial of an indictment for the malicious burning of a building, a board from the building in question, being produced in evidence, and exhibited to the jury as the only part of the building burnt, it was held, that whether the same had been so affected by fire as to constitute a burning within the legal meaning of the term, was a question of fact to be determined by the jury, upon the evidence before them, as in ordinary cases. c And the jury may be taken to view the

house. d

How far a watchman, appointed to watch for fires, is respon

x State v. Sandy, 3 Iredell, 570; State v. Mitchell, 5 Ired. 350; People v. Cotterall, 18 Johns. 115.

y 1 Hawk. c. 39, s. 17; 3 Inst. 66; 1 Hale, 569; Dalt. 606; 2 Russ. on Crimes, 558; Hester v. State, 17 Geo.

130.

z 2 Russ. on Cr. 548.

568, 569; 1 Hawk. P. C. c. 39, s. 16, 17; 2 East P. C. c. 21, s. 4, p. 1020; Com. v. Van Shaack, 16 Mass. Rep. 105. b Ante, § 683; see Sam v. State, 33 Miss. 347.

b Ante, § 751.

c Com. v. Betton, 5 Cush. 427.

d Fleming v. State, 11 Ind. 234.

a 3 Inst. 66; Dalt. 506; 1 Hale, Post, § 3160.

sible, if by negligence on his part, he omits to give notice that a fire has begun, has been already discussed. d1

§ 1662. Upon an indictment for maliciously setting fire to a house, it appeared that a small fagot was found lighted and burning on the boarded floor of the kitchen, and a part of the boards of the kitchen floor was scorched black, but not burnt; the fagot was nearly consumed, but no part of the wood of the floor was consumed; and Cresswell, J., after conferring with Patteson, J., held that as the wood of the floor was scorched, but no part of it consumed, the indictment could not be supported. But the learned judges were of opinion, that it was not essential that the wood should be in a blaze, because some species of wood would burn and entirely consume without blazing at all. d2

And generally, to constitute a setting on fire, it is not necessary that any flame should be visible. e

2. Agency by which Fire is communicated.

The agency of burning is immaterial. To set on fire by hot shot would, no doubt, be arson; and so of kindling a fire in a stack, likely to communicate to the dwelling, and which does so communicate.f

3. Malice, &c.

§ 1663. The burning must be malicious g and voluntary, otherwise it is not felony, but only a trespass, and therefore no negligence or mischance amounts to it. Thus, in England, if a person not properly qualified, by shooting at game, happen to set fire to the thatch of a house, or if a man shooting at the poultry of another do the same, the offence is not arson. In such case, however, if the defendant intended to steal the poultry, and not merely to commit a trespass, the first intent being felonious, he must abide all the consequences. h It has been held, that the setting fire by a prisoner to his cell was not arson, if the intent were merely to effect his own escape by making a hole, and not to burn down the building. i

d1 Ante, § 1011.

R. v. Russell, 1 C. & Mars. 541. e R. v. Stallion, 1 Mood. C. C. R. 398.

ƒ R. v. Cooper, 5 C. & P. 335. post, § 1668. Ante, § 751.

༡

2 East P. C. 1033; Jesse v. State 28 Mississippi, 100.

h 1 Hale, 567, 569; 3 Inst. 67.

i People v. Cottrell, 18 Johns. 115. See See also State v. Mitchell, 5 Ired. 350. But in view of the fact that a jail is

But if a man, intending to commit a felony, by accident set fire to another's house, this, it would seem, would be arson at common law, and also within the statute. If, intending to set fire to the house of A., he accidentally set fire to that of B., it is also arson. k

4. Burning one's own House.

§ 1664. The weight of general authority is, that if a man, by wilfully setting fire to his own house, with a felonious intent, burn also the house of one of his neighbors, it will be arson, l for the law, in such a case, implies malice, particularly if the party's house were so situate that the probable consequence of its taking fire was, that the fire would communicate to the houses in its neighborhood.

It is without doubt a high misdemeanor to set fire to one's own house in a populous city, where the danger of the communication of the fire is necessarily great, m though no such communication actually takes place. n In Massachusetts, it is true, in an action of slander, where the defendant was charged with having said of the plaintiff that he had set fire to his own house, it was held that such an offence was not per se indictable, o but it is clear that the court meant to go no farther than to say that a charge of such burning, unless alleged to have been accompanied with wantonness or malice, was not sufficient to support a declaration in slander without a proper innuendo or colloquium. It may be conceded that, without a felonious intent, the offence is not felony at common law. p It is otherwise when the intent is felonious, as to burn a neighbor's house, or to produce a general conflagration; q or, when supposing there are persons dwelling in the house, to maliciously imperil their lives. In the latter case,

See State v. Elder, 21 La. An. 157. In New Hampshire it has been held that one's own dwelling-house, falls under "any dwelling-house," in the statute. State v. Hurd, 51 N. H. 176. n 1 Hawk. c. 39, sect. 1; Hale, 568, 569; Holmes's case, Cro. Car. 377; 4 Black. Com. 321.

o Bloss v. Tobey, 2 Pick. 320. P Roberts v. State, 7 Cold. 359. q R. v. Scofield, Cald. 397; Holmes's case, Cro. Car. 376.

the ordinary elements of a felonious assault are made out; and the reckless firing of the house would thus become arson. It would be monstrous to hold that a man could defend himself on the charge of burning an inhabited house by proving the house was his own. Hence, when the purpose is unlawful, burning one's own house is held to be statutory arson in New York and Ohio. r

Subject to the above qualifications, it is no felony at common law for a lessee to burn the premises in his possession under the lease, 8 nor for a mortgagor in possession to burn his own house, t though in both cases the offence would undoubtedly be indictable as a misdemeanor.

5. Proof of Intent.

§ 1665. The intent may be inferred, when the building fired is another's, from the act; u or from threats, or even from other attempts bearing upon the arson under trial. v But in the statutory offence of setting fire to one's own house, with intent to defraud the insurers, the intent must be substantively proved as essential to the offence. w Hence the intent must be proved as laid; and if the policy of insurance or the defendant's knowledge of it, cannot be proved, the case falls.x

Upon a trial for arson, with intent to defraud an insurance. company, evidence that the prisoner had made claims on two other insurance companies in respect of fires which had occurred previously, and in succession, was admitted for the purpose of showing that the fire which formed the subject of the trial was the result of design and not of accident. But it is not admissible to prove the distinguishing features of such fires. y

Collateral intent. Upon an indictment for arson, with intent to injure the person in occupation of the premises, the prisoner may be found guilty, although his intent is proved to have been