licious, and so it has generally been held.127 And by the better opinion, where the burning is the result of negligence or mischance, the fact that the accused, when he caused the fire, was engaged in the commission of some other offense, even a felony, cannot render him guilty of arson.128 But, on the principle that a man is presumed to have intended the natural and probable consequences of his voluntary acts, if a man does an unlawful act, the natural tendency of which is to set fire to and burn a house, and such a consequence follows, the burning is to be regarded as intentional and malicious.129 Thus, if one sets fire to his own house, which is not arson nor a crime at common law,130 or any other building, the burning of which is not arson, and burns an adjoining house of another, the burning of the latter is malicious, and constitutes arson.131 127 4 Bl. Comm. 222; 1 Hale, P. C. 569, Mikell's Cas. 927; Reg. v. Faulkner, supra. 128 In Reg. v. Faulkner, supra, which is a leading case on this point, the defendant was indicted for the malicious burning of a ship,—a statutory arson. It appeared that he was a seaman on board the vessel, and went into the hold for the purpose of stealing rum which was stored there. He tapped a barrel, and the rum caught fire from a lighted match which he held, and the ship was burned. The trial judge instructed the jury to convict on the simple ground that the firing of the ship, though accidental, was caused by an act done in the commission of a felony,-larceny of the rum,—and did not leave to the jury any question as to whether the firing was a natural consequence of his unlawful act, so that he could, for that reason, be presumed to have intended it. The court for crown cases reserved quashed the conviction on the ground that the mere fact that the defendant was engaged in the commission of a felony did not make the unintentional firing of the ship malicious. According to this case, and others to the same effect, to constitute a malicious burning, it must be intentional. 129 See Reg. v. Faulkner, supra; Reg. v. Lyons, 8 Cox, C. C. 84. 130 Ante, §§ 413a, 413c. 131 Isaac's Case, 2 East, P. C. 1031, Beale's Cas, 799; Proberts' Case, 2 East, P. C. 1030; Rex v. Pedley, Cold. 218; Combs v. Com., 93 Ky. 313, 20 S. W. 221; State v. Laughlin, 53 N. C. 354. And see State v. Toole, 29 Conn. 342, 76 Am. Dec. 602; Woodford v. People, 62 N. Y. 117, 20 Am. Rep. 464; McDonald v. People, 47 Ill. 533; Lacy v. State, 15 Wis. 13; Early v. Com., 86 Va. 921, 11 S. E. 795. C. & M. Crimes-40. In reason and on principle, if a man willfully and intentionally sets fire to and burns a house, without justification or excuse, his act is malicious, and he is none the less guilty of arson because he does not intend to consume the house, but is influenced by other motives. Therefore, it would seem that, if a prisoner sets fire to and burns any part of a jail, he is guilty of arson, though his intention may be, not to consume the jail, but merely to effect an escape. 416. Statutory Burnings. 132 By statute in most jurisdictions the offense of arson has been extended so as to include the burning of other buildings than dwelling houses. They make the crime an offense against the property, and not merely against the security of the habitation. Thus, statutes have been enacted in many states declaring it arson to burn a shop, a warehouse, a store, a vessel, etc. These statutes do not change the offense otherwise than as to the character of the premises, unless such an intention on the part of the legislature is clear. They are to be construed in the light of the common law.133 For example, they do not, unless 132 Luke v. State, 49 Ala. 30, 20 Am. Rep. 269; Smith v. State, 23 Tex. App. 357, 5 S. W. 219; Willis v. State, 32 Tex. Cr. App. 534, 25 S. W. 123. Some courts have held that such a burning is not "malicious," within the definition of “arson." State v. Mitchell, 5 Ired. (N. C.) 350; People v. Cotteral, 18 Johns. (N. Y.) 115. Some of the decisions usually cited as sustaining this view are based upon peculiar statutes, and, if construed with reference to the statutes, will be found not to be authority at common law. In Jenkins v. State, 53 Ga. 33, 21 Am. Rep. 255, the defendant attempted to burn a hole through the door of a guard house, in which he was a prisoner, for the purpose of escaping, and not with the intention of consuming or generally injuring the building. It was held that he was not guilty, under a statute punishing an attempt "to burn a house." This decision, however, was based on the fact that the statutes (Code Ga. 1882, §§ 4376, 4381) punished the attempt to burn a house only where there was an intent "to consume or generally injure the house," and there was no reference to arson at common law. 133 See Heard v. State, 81 Ala. 55, 1 So. 640. by express terms, dispense with the necessity for an actual burning of some part of the building.134 Nor, unless such an intent on the part of the legislature is clear, do they change the common-law rule that the house must be that of another than the accused, 135 The statutes are not to be construed as dispensing with the necessity for the same willfulness and malice as is required by the common law, unless such an intent is clear.136 Sometimes the statutes use the term "willfully" only, and do not expressly require that the burning shall be malicious. This term, it has been held, means something less than maliciously, and more than intentionally. It means unlawfully, and to some extent willfully. And under a statute punishing the "willful" burning of a jail, a prisoner was held guilty where he set fire to and partly burned the floor of the jail for the purpose of escaping, though there was no intention to consume the building, and he kept control of the fire by pouring water on it, so as only to burn a hole in the floor.137 134 Mary v. State, 24 Ark. 44, 81 Am. Dec. 60. 135 Spalding's Case, 2 East, P. C. 1025, 1 Leach, C. C. 218; State v. Sarvis (S. C.) 24 S. E. 53; People v. Myers, 20 Cal. 76; People v. DeWinton, 113 Cal. 403, 45 Pac. 708; People v. Gates, 15 Wend. (N. Y.) 159. 136 See Heard v. State, 81 Ala. 55, 1 So. 640. 137 Luke v. State, 49 Ala. 30, 20 Am. Rep. 269. CHAPTER IX. OFFENSES OTHER THAN AGAINST THE PERSON, PROPERTY, OR HABITATION OF INDIVIDUALS. I. OFFENSES AFFECTING THE PUBLIC PEACE, §§ 417-429. II. III. IV. OFFENSES AFFECTING THE ADMINISTRATION OF JUSTICE OR OF GOV- OFFENSES AFFECTING THE PUBLIC SAFETY, HEALTH, COMFORT, ETC., OFFENSES AGAINST GOD AND RELIGION, § 457. V. OFFENSES AGAINST MORALITY AND DECENCY, §§ 458-473. VI. OFFENSES AFFECTING THE PUBLIC TRADE, §§ 474-481. VII. OFFENSES AGAINST THE LAW OF NATIONS, §§ 482-485. I. OFFENSES AFFECTING THE PUBLIC PEACE. 417. In General.-Any act which in itself constitutes a breach of the public peace, or which has a direct tendency to cause a breach of the public peace, is a misdemeanor at common law. In a broad sense, all offenses are breaches of the public peace. Unless otherwise provided by statute, every indictment, whether for a common-law or statutory offense, concludes by alleging that the offense was committed "against the peace of the state." We are to treat here, however, of those offenses only, other than felonies and certain misdemeanors, as homicide, assault and battery, etc., heretofore considered, which are punished because they especially affect the public peace. It is for this reason that the law punishes forcible entry and detainer, affrays, unlawful assemblies, routs, riots, disturbance of public assemblies, certain kinds of disorderly houses, libel, and malicious mischief. In addition to these specific offenses, it may be laid down as a general rule that any other act which constitutes a breach of the public peace, or which has a direct tendency to cause a breach of the public peace, is a misdemeanor at com mon law.1 Thus, where a man discharged his gun at wild fowl, with knowledge and after warning that the report would injuriously affect a sick person in the neighborhood, and the report had such effect, it was held that his act was an indictable offense, not only because it was a wanton act of mischief, but also because it was against the public peace and security.2 "It is not necessary that there shall be actual force or violence to constitute an indictable offense. Acts injurious to private persons, which tend to excite violent resentment, and thus produce fighting and disturbance of the peace of society, are themselves indictable. To send a challenge to fight a duel is indictable, because it tends directly towards a breach of the peace. Libels fall within the same reason. A libel even of a deceased person is an offense against the public, because it may stir up the passions of the living, and produce acts of revenge." 418. Trespass and Forcible Entry and Detainer.-A trespass upon land is a misdemeanor at common law when committed under such circumstances as to constitute a breach of the peace, but not otherwise. It is also punished by statute. To merely break and enter the close of another is, in contemplation of law, a trespass committed vi et armis,—with force and arms; but unless it is committed under such circumstances as to constitute an actual breach of the peace, it is not indictable at common law, but is to be redressed by a civil action only. If, however, it is attended by a breach of the 14 Bl. Comm. 142 et seq.; Rex v. Billingham, 2 Car. & P. 234; Henderson v. Com., 8 Grat. (Va.) 708, 56 Am. Dec. 160; State v. Burnham, 56 Vt. 445, 48 Am. Rep. 801; State v. Benedict, 11 Vt. 236, 34 Am. Dec. 688; State v. Jasper, 4 Dev. (N. C.) 323; State v. Huntly, 3 Ired. (N. C.) 418, 40 Am. Dec. 416; State v. Batchelder, 5 N. H. 549; Rex v. Summers, 3 Salk. 194, Mikell's Cas. 41; Com. v. Haines, 4 Clark (Pa.) 17, Mikell's Cas. 41. 2 Com. v. Wing, 9 Pick. (Mass.) 1, 19 Am. Dec. 347, Beale's Cas. 119. 3 Com. v. Taylor, 5 Binn. (Pa.) 277; post, § 428. 4 Rex v. Blake, 3 Burrow, 1731, Beale's Cas. 102; Rex v. Storr, 3 Burrow, 1698; Rex v. Wilson, 8 Term R. 357; Kilpatrick v. People, 5 |