411. Character of the Premises.

(a) In General.-Arson, like burglary, is at common law an offense against the habitation of individuals, and not merely an offense against the property as such. The common-law definition is the willful and malicious burning of the "house" of another, but this means the dwelling house of another. At common law, therefore, it is not arson at all to burn shops, stores, warehouses, and the like, unless they are also occupied in part as a residence, but the premises must be a dwelling house.101 If a shop or store, however, is also occupied as a dwelling, it is within the definition of arson.102 What has been said, in treating of burglary, as to what constitutes a dwelling house, is equally applicable to arson, for any building that is the subject of burglary at common law is also the subject of arson.103 That a jail is a dwelling house within the definition of arson has been held in a number of cases. 104

(b) Outhouses within the Curtilage.—As in burglary, so in the definition of arson, the "house" or "dwelling house" includes and protects all outhouses, as the barn, stable, kitchen, smokehouse, etc., which are within the curtilage or common inclosure, and which are commonly used in connection with the dwelling proper. But outhouses which are not within the

105

101 1 Hawk. P. C. c. 18, § 2, Beale's Cas. 797. And see State v. McGowan, 20 Conn. 245, 52 Am. Dec. 336; McLane v. State, 4 Ga. 335; Snyder v. People, 26 Mich. 106, 12 Am. Rep. 302; Stallings v. State, 47 Ga. 572; State v. Williams, 90 N. C. 724, 47 Am. Rep. 541; Com. v. Posey, 4 Call. (Va.) 109, 2 Am. Dec. 560.

102 McLane v. State, 4 Ga. 335; State v. Williams, 90 N. C. 724, 47 Am. Rep. 541; State v. Outlaw, 72 N. C. 598; State v. Jones, 106 Mo. 302, 17 S. W. 366; State v. Kroscher, 24 Wis. 64.

103 1 Hale, P. C. 567, Mikell's Cas. 927; ante, § 401.

104 People v. Van Blarcum, 2 Johns. (N. Y.) 105; People v. Cotteral, 18 Johns. (N. Y.) 115; Com. v. Posey, 4 Call (Va.) 109, 2 Am. Dec. 560.

105 1 Hale, P. C. 570, Mikell's Cas. 927; 4 Bl. Comm. 221; Anon., Year Book 11 Hen. VII. 1, Beale's Cas. 597; People v. Taylor, 2 Mich. 250; Hooker v. Com., 13 Grat. (Va.) 763; Com. v. Barney, 10 Cush. (Mass.) 480; Curkendall v. People, 36 Mich. 309; State v. Warren, 33 Me. 30.

curtilage or common inclosure are not the subject of arson at common law.106 What has been said on this point in treating of burglary is equally applicable here.107

412. Occupancy of the Premises.

To constitute a dwelling house, within the definition of arson, the house must not be merely intended for use as a residence and fitted for such use, but it must be occupied as a dwelling, for, as has been stated, the offense is against the security of the habitation, and not against the house, considered merely as property. It is not arson at common law, therefore, to burn a building which is only partly completed, and not yet occupied, or even a building which is completed, and even furnished and suitable for present use as a dwelling, but which is not yet occupied.108 A dwelling house which is occupied, but from which the occupant is temporarily absent, is the subject of arson.109 It is otherwise, however, if there is no present intention to return,110 or the house has been permanently abandoned as a dwelling.110a What has been said on this point in dealing with burglary is equally applicable to arson.111

413. Ownership of the Premises.

(a) In General.-To constitute arson at common law, the house must be the dwelling house of some other person than the offender. One who for any reason sets fire to his own dwelling

106 Curkendall v. People, 36 Mich. 309.

107 Ante, § 401b.

108 Elsmore v. Inhabitants, etc., 8 Barn. & C. 461; Reg. v. Allison, 1 Cox, C. C. 24; State v. McGowan, 20 Conn. 245, 52 Am. Dec. 336; Com. v. Francis, Thatch. C. C. (Mass.) 240; Dick v. State, 53 Miss. 384; Stallings v. State, 47 Ga. 572.

109 State v. McGowan, 20 Conn. 245, 52 Am. Dec. 336; State v. Warren, 33 Me. 30; Johnson v. State, 48 Ga. 116.

110 Hooker v. Com., 13 Grat. (Va.) 763; State v. Clark, 7 Jones (N. C.) 167.

110a Henderson v. State, 105 Ala. 82, 16 So. 931.

111 Ante, § 402.

house is not guilty of this crime.112 And it makes no difference that the house of another is endangered by the fire, nor even that there is an intent to burn the adjoining house of another, if it is not in fact burned.113 It is not arson at common law for a man to burn his own house, occupied by him, for the purpose of defrauding an insurance company.114 On this principle, one who burns the house of another at his request or instigation is not guilty of arson.115 If a man sets fire to his own house, or to a building of another not a dwelling house, and burns adjoining houses of others, he is guilty of arson.116

(b) Husband and Wife.-Since, at common law, husband and wife are regarded as one person, the wife cannot be guilty of arson in burning the husband's house; and it can make no difference that she is at the time living apart from him.117 So, also, a husband is not guilty of arson in burning a dwelling house occupied by himself and his wife, jointly, though it may be her property; and this rule is not affected by the married woman's acts in the different jurisdictions giving the wife the property owned or acquired by her, free from the control of the husband.118

112 4 Bl. Comm. 221; Holme's Case, Cro. Car. 376, W. Jones, 351, Beale's Cas. 797; Isaac's Case, 2 East, P. C. 1031, Beale's Cas. 799; Rex v. Spalding, 2 East, P. C. 1025, 1 Leach, C. C. 218; Rex v. Proberts, 2 East, P. C. 1030; State v. Hurd, 51 N. H. 176; State v. Haynes, 66 Me. 307, 22 Am. Rep. 569; State v. Keena, 63 Conn. 329, 28 Atl. 522; State v. Sarvis (S. C.) 24 S. E. 53; People v. De Winton, 113 Cal. 403, 45 Pac. 708; post, § 413c, note 119, and cases there cited.

113 4 Bl. Comm. 221; Holme's Case, Cro. Car. 376, W. Jones, 351, Beale's Cas. 797; Isaac's Case, 2 East, P. C. 1031, Beale's Cas. 799; People v. De Winton, 113 Cal. 403, 45 Pac. 708.

114 Isaac's Case, 2 East, P. C. 1031, Beale's Cas. 799; State v. Sarvis, 45 S. C. 668, 24 S. E. 53, 55 Am. St. Rep. 806, 32 L. R. A. 647; State v. Haynes, 66 Me. 307, 22 Am. Rep. 569.

115 State v. Haynes, supra; Roberts v. State, 7 Cold. (Tenn.) 359.

116 4 Bl. Comm. 221; Isaac's Case, 2 East, P. C. 1031, Beale's Cas. 799; Robert's Case, 2 East, P. C. 1030; Rex v. Pedley, Cold. 218; State v. Laughlin, 53 N. C. 354; Combs v. Com., 93 Ky. 313, 20 S. W. 221; post, § 415.

117 March's Case, 1 Mood. C. C. 182.

118 Snyder v. People, 26 Mich. 106, 12 Am. Rep. 302.

(c) Occupancy, not Title, is the Test.-Since arson is an offense against the security of the habitation, and not against the house as property, when it is said that the house must be that of another, it is meant that it must be occupied by another. A man does not commit arson by burning a house occupied by himself, though it may be owned by another.119 On the other hand, the legal owner of a house may be guilty of arson if he burns it while it is occupied by a lessee.120 If the house is occupied by husband and wife, the law regards the husband as occupant, and the offense is against him, though the property may belong to the wife.121 A jail, in which the jailer and his family reside, is his dwelling house, and the subject of arson.122

414. The Burning.

The burning necessary to constitute arson at common law must be an actual burning of some part of the house. An attempt to burn by actually setting a fire is not enough, if no

119 Holme's Case, Cro. Car. 376, W. Jones, 351, Beale's Cas. 797; Rex v. Pedley, 1 Leach, C. C. 242; Breeme's Case, 2 East, P. C. 1026; State v. Keena, 63 Conn. 329, 28 Atl. 522; State v. Lyon, 12 Conn. 487; State v. Fish, 27 N. J. Law, 323; Sullivan v. State, 5 Stew. & P. (Ala.) 175; State v. Young, 139 Ala. 136, 36 So. 19, 101 Am. St. Rep. 21; State v. Sandy, 3 Ired. (N. C.) 570; ante, § 413a, note 112, and cases there cited. It is not arson for a mortgagor of a house to burn it while in possession. Spalding's Case, 2 East, P. C. 1025, 1 Leach, C. C. 218.

But where a pauper burned a house occupied by himself and family by sufferance of the parish officers, he was held a mere servant and the burning arson. Rex v. Gowen, 1 Leach, C. C. 246, n., 2 East, P. C. 1027, Mikell's Cas. 930.

120 4 Bl. Comm. 221; Rex v. Harris, Fost. 113, Mikell's Cas. 928; State v. Toole, 29 Conn. 342, 76 Am. Dec. 602; Erskine v. Com., 8 Grat. (Va.) 624; Sullivan v. State, 5 Stew. & P. (Ala.) 175; Snyder v. People, 26 Mich. 106, 12 Am. Rep. 303.

The interest or title of the occupant is altogether inmaterial. People v. Van Blarcum, 2 Johns. (N. Y.) 105.

The offense may be committed against one whose occupancy is wrongful. Rex v. Wallis, 1 Mood. C. C. 344.

121 Rex v. French, Russ. & R. 491; Rex v. Wilford, Russ. & R. 517. 122 People v. Van Blarcum, 5 Johns. (N. Y.) 105; Stevens v. Com., 4 Leigh (Va.) 683.

part of the house is burned. Neither a blackening of the wood by smoke nor a mere scorching of the wood will suffice, but some part of the fiber of the wood must be consumed.123 For this reason, the words "incendit et combussiť" were necessary, in the days of law Latin, in all indictments for arson, and the word "burn" is essential now. It is not necessary that any part of the house shall be wholly consumed, or that the fire shall have any continuance. If there is the slightest burning of any part of the house, the offense is complete, though the fire may be put out, or may go out of itself.124 There need not even be a blaze, but mere charring is sufficient.125

415. Intent-Malice.

All the definitions of arson at common law require that the burning shall be both willful and malicious;126 but there has been some difference of opinion as to what is necessary to constitute malice within the meaning of the definitions, and the cases on the subject cannot all be reconciled. It would seem clear that a burning arising from negligence and mischance cannot, under any circumstances, be regarded as willful and ma

123 4 Bl. Comm. 222; Reg. v. Russell, Car. & M. 541, Mikell's Cas. 931; Mary v. State, 24 Ark. 44, 81 Am. Dec. 60; Howel v. Com., 5 Grat. (Va.) 664; Cochrane v. State, 6 Md. 404; State v. Hall, 93 N. C. 571; People v. Haggerty, 46 Cal. 354; Woolsey v. State, 30 Tex. App. 346, 17 S. W. 546. Compare Com. v. Tucker, 110 Mass. 403, Beale's Cas. 800. 124 4 Bl. Comm. 222; Mary v. State, 24 Ark. 44, 81 Am. Dec. 60; Com. v. Tucker, 110 Mass. 403, Beale's Cas. 800; State v. Spiegel, 111 Iowa, 701, 83 N. W. 722.

125 Reg. v. Parker, 9 Car. & P. 45; Reg. v. Russell, Car. & M. 541, Mikell's Cas. 931. And see Graham v. State, 40 Ala. 659; Benbow v. State, 128 Ala. 1, 29 So. 553; State v. Sandy, 3 Ired. (N. C.) 570; Levy v. People, 80 N. Y. 327; Woolsey v. State, 30 Tex. App. 346, 17 S. W. 546; People v. Haggerty, 46 Cal. 354; State v. Denin, 32 Vt. 158; State v. Hall, 93 N. C. 571.

126 3 Inst. 66, 67; 4 Bl. Comm. 222; 1 Hale, P. C. 566, 569, Mikell's Cas. 927; Reg. v. Faulkner, 13 Cox, C. C. 550, Ir. 11 C. L. 13, Beale's Cas. 213; Jenkins v. State, 53 Ga. 33, 21 Am. Rep. 255; Heard v. State, 81 Ala. 55, 1 So. 640; Kellenbeck v. State, 10 Md. 431, 69 Am. Dec. 166; McDonald v. People, 47 Ill. 533.