19 E. C. L.; R. v. Tottenham, 7 C. & P. 237, 32 E. C. L.; 1 Moo. C. C. 461. It was held sufficient under the last-mentioned statute, if the indictment charged the prisoner with setting fire to a stack of barley; R. v. Swatkins, 4 C. & P. 548, 19 E. C. L.; or a stack of beans; R. v. Woodward, 1 Moody, C. C. 323, the words of that statute being "any corn, grain, pulse, straw, hay, or wood." In R. v. Aris, 6 C. & P. 348, 25 E. C. L., the prisoner was indicted under the same statute for setting fire to a "stack of wood," and it appeared that between the house of the prosecutor and the next house there was an archway over which a sort of loft was made by means of a temporary floor, where there was a small quantity of straw and a store of faggots piled on one another; the straw was burnt and some of the faggots. Park, J., was clearly of opinion that this was not a stack of wood within the meaning of the statute. A quantity of straw packed on a lorry left in the yard of an inn, on its way to market is not a stack of straw. R. v. Satchwell, L. R. 2 C. C. 21 ; 42 L. J., M. C. 63.

Proof of property set fire to-wood. In R. v. Price, 9 C. & P. 729, 38 E. C. L., under the repealed statute, 7 & 8 Geo. 4, c. 30, s. 17, the prisoners were charged with setting fire to a wood, and it appeared that they set fire to a summer-house which was in the wood, and that from the summer-house the fire was communicated to the wood. It was held, that they might be properly convicted. Setting fire to a single tree is not arson within this section; R. v. Davey, 1 Cox, C. C. 60.

Proof of property set fire to-ships and vessels. A pleasureboat, eighteen feet long, was thought by Patteson, J., not to be a vessel within the meaning of the 7 & 8 Geo. 4, c. 30, s. 9; R. v. Bowyer, 4 C. & P. 559, 19 E. C. L. Upon an indictment for setting fire to a barge, Alderson, B., said that, if the prisoner was convicted he would take the opinion of the judges, as to whether a barge was within the same statute; but the prisoner was acquitted. R. v. Smith, 4 C. & P. 569, 19 E. C. L.

[*295

Setting fire to goods in a house. In R. v. Lyons, 28 L. J., M. C. 33, a question was raised whether a man could be indicted for setting *fire to goods in his own house with intent thereby to defraud an insurance company. The house was not set fire to. It was contended that as merely setting fire to a man's own house without any special intent was not felony at common law, nor was made so by any statute, setting fire to goods in a man's own house even with a fraudulent intent was not felony either, as the 14 & 15 Vict. c. 19, s. 3, only made it a felony to set fire to goods in a building, the setting fire to which is made felony by that or any other statute. But the court held that the conviction was good, as the offence charged clearly came within the true meaning and intention of the legislature, giving the section a reasonable construction. An opinion was, however, expressed in the

course of the argument, that the indictment ought to follow the words of the statute and expressly to state that the goods were set fire to in a building the setting fire to which was a felony, which was not done here; but the omission was not considered to be a ground for quashing the conviction. The terms of the present statute (24 & 25 Vict. c. 97, s. 7, supra, p. 286) are somewhat different.1

The effect of the decision in R. v. Lyons, supra, nas been very extraordinary. The statute in force at the time that that case was decided made it a felony to set fire to goods in any house the setting fire to which is felony, e. g., a dwelling-house. Lyons' house, however, was his own property, and it would not be a felony to fire it unless with an intent to injure or defraud with respect to the house, of which there was no evidence. Pollock, C. B., said, "We think the offence is complete if there be a setting fire to the goods under such circumstances as, if shown with respect to a house set on fire, would render the setting fire to the house a felony. Here the intent to defraud is alleged with respect to the goods. The setting fire to the house with the like intent would be felony." Instead of adhering strictly to the language of Pollock, C. B., the present statute (s. 7, ante, p. 286) speaks of setting fire to goods under such circumstances that if the building were thereby set fire to the offence would amount to felony. It has accordingly been held that the jury must be asked, supposing the house caught fire, would it have been wilful and malicious firing, and if the jury negative any malice or recklessness with respect to the house, the prisoner cannot be convicted of the felony, notwithstanding that he set fire to the goods maliciously meaning to destroy them. The facts of the case were as follows: The prisoner from ill will to the prosecutrix broke up her chairs, tables, and other furniture, made a pile of them and her clothes on the stone floor of the kitchen of her lodgings, and lit them at the four corners so as to make a bonfire of them. The building would almost certainly have been burned in consequence had not the police, who were sent for, succeeded in extinguishing the bonfire. The learned judge (Blackburn, J.) directed the jury, if they thought the prisoner was aware of what he was doing, and that it would probably set the building on fire, or was at best reckless whether it did or not, they would find him guilty of the felony. The jury, however, found him "guilty, but not so that if the house had caught fire, the setting fire to the house would have been wilful and malicious." It was held that the conviction was bad, R. v. Child, L. R. 1 C. C. R. 307; 40 L. J., M. C. 127; R. v. Vattrass, 15 Cox, 73; R. v. Harris, 15 Cox, 75.

*296]

*When persons are considered as being in the house when set fire to. A stable which adjoined a dwelling-house Firing one's own house to defraud insurer, is not arson. Roberts v. State, 7 Cold. 359. See Shepherd v. People, 19 N. Y. 537. S.

Under Nevada statute evidence of over assurance upon the goods of the accused, destroyed by fire, is competent. State v. Cohn, 9 Nev. 179.

was set on fire; the flames communicated to the dwelling-house, in which members of the family had been sleeping; but it did not appear whether the house took fire before they left the house or after. Alderson, B., in summing up the case to the jury, directed them to say by their verdict, should they find the prisoner guilty, whether the house took fire before the family were in the yard or after. If they were of opinion that it was after the family were in the yard, his lordship said that he thought they ought to acquit the prisoner of the capital charge, as to sustain that, in his opinion, it was necessary that the parties named in the indictment should be in the house at the very time the fire was communicated to it. But his lordship added that, the point being a new one, and of very great importance, he should not take upon himself to decide it there, but should reserve it for the decision of the judges. The prisoner was acquitted of the entire charge. R. v. Warren, 1 Cox, C. C. 68. In R. v. Fletcher, 2 C. & K. 215, 61 E. C. L., Patteson, J., held in a similar case that, if the fire caught the house after the inmates had left it, the charge could not be sustained.

Possession-how to be described. The house burned should be described as being in the possession of the person who is in the actual occupation, even though the possession be wrongful.' Thus where a laborer in husbandry was permitted to occupy a house as part of his wages, and after being discharged from his master's service, and told to quit the house in a month, remained in it after that period, it was held by the judges, upon an indictment for setting fire to the house, that it was rightly described as being in the possession of the laborer. R. v. Wallis, 1 Moody, C. C. 344.

Proof of malice and wilfulness. If the act of burning be done under a bona fide belief in the existence of a right to burn (as where a woman set fire to some furze on a common), there is no criminal offence. R. v. Twose, 14 Cox, C. C. 327. It must be proved that the act of burning was both wilful and malicious, otherwise it is only a trespass and not a felony; 1 Hale, P. C. 569. Therefore if A. shoot unlawfully at the poultry or cattle of B., whereby he sets the house of another on fire, it is not felony; for though the act he was doing was unlawful, he had no intention to burn the house; Id. In this case, observes Mr. East, it should seem to be understood that he did not intend to steal the poultry, but merely to commit a trespass; for otherwise, the first attempt being felonious, the party must abide all the consequences. 2 East, P. C. 1019. But where a sailor on board a ship entered the hold for the purpose of stealing the rum, and the rum coming in contact with a lighted match in his hand, the ship

If it be in fact the dwelling-house, the court will not inquire into the tenure or interest of the occupant. People v. Van Blarcum, 2 Johns, 105. In an indictment for burning a public building, it is not necessary to allege who is its owner or occupant, and any such allegation, if made, is immaterial. State v. Roe, 12 Vt. 93. But see Carter v. State, 20 Wis. 647. S.

was set on fire and destroyed, it was held by the Court of Crown Cases Reserved in Ireland that a conviction for arson could not be upheld. Reg. v. Faulkner, 13 Cox, C. C. R. Ir. 550. See ante, p. 24. It is at least very doubtful whether the proposition laid down by Mr. East can now be considered law. See post, tit. "Murder," "Proof of malice, death ensuing from unlawful act." If A. has a malicious intent to burn the house of B., and without intending it burns that of C., it is felony. 1 Hale, P. C. 569; 2 East, P. C. 1019. So if A. command B. to burn the house of J. S., and he do so, and the fire burns also another house, the person so commanding is accessory to *the burning of the latter house. Plowd. 475; 2 East, P. C.

*297] 1019. So where the primary intention of the offender is only to burn his own house (which is no felony), yet if in fact other houses are thereby burned, being adjoining, and in such a situation as that the fire must in all probability reach them, the intent being unlawful, and the consequence immediately and necessarily flowing from the original act done, it is felony. 2 East, P. C. 1031. On an indictment for wilfully setting fire to a rick by firing a gun close to it, evidence was allowed to be given by Maule, J., with a view of showing that the fire was not accidental, that on a previous occasion the prisoner was seen near the rick with a gun in his hand, and that the rick was then also on fire. R. v. Dossett, 2 C. & K. 306, 61 E. C. L. Upon this point it was said by Tindal, C. J., in his charge to the grand jury at Bristol: "Where the statute directs, that to complete the offence it must have been done with intent to injure or defraud some person, there is no occasion that either malice or ill-will should subsist against the person whose property is destroyed. It is a malicious act in contemplation of law, when a man wilfully does that which is illegal, and its necessary consequence must injure his neighbor, and it is unnecessary to observe that the setting fire to another's house, whether the owner be a stranger to the prisoner, or a person against whom he had a former grudge, must be equally injurious to him: nor will it be necessary to prove that the house which forms 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 constitute 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 punishment on the ground that the mischief he committed was wider in its consequences than he originally intended." 5 Car. & P. 266 (n), 24 E. C. L.

But where two lads threw a lighted paper into a post-office letterbox, forming part of a house, whereby several letters were burnt, Williams, J., said, that no doubt if they intended the fire to do its worst they would be guilty, but if they only set fire to the letters, and it was contrary to their intention to burn the house, they would not be guilty, and would not be guilty even if the house had been burnt. R. v. Batstone, 10 Cox, 20.

In R. v. Gray, 4 F. & F. 1102, evidence of other claims on other insurance companies in respect of fires, in other houses previously

By statute. Many attempts to commit offences are provided for by statute. Most of them would be offences at common law, but, by statute, severe penalties are attached to them, or they are even made independent felonies. Thus, by the 24 & 25 Vict. c. 100, ss. 18, 21 (supra, p. 301), the attempt to commit any of the offences therein mentioned is made a felony. By s. 15 of the same statute, "Whosoever shall, by any means other than those specified in any of the preceding sections of this act, attempt to commit murder, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life, or for any term not less than three [now five] years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."

In s. 21 (supra, p. 301), the attempt to choke, etc., is specially *mentioned. By s. 62 (supra, p. 303), any attempt to commit an infamous crime is specially provided for.

[*312

In almost all cases provisions for the offence of setting fire to various kinds of property are followed by provisions directed against the attempt to commit the same offence. See 24 & 25 Vict. c. 97, ss. 8, 10, 18, 27, 38, 44, supra, tit. "Arson."

Conviction for attempt on indictment for principal offence. By the 14 & 15 Vict. c. 100, s. 9, " if upon the trial of any person charged with any felony or misdemeanor, it shall appear to the jury upon the evidence that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the said indictment; and no person so tried as herein lastly mentioned shall be liable to be afterwards prosecuted for an attempt to commit the felony or misdemeanor for which he was so tried." It has been suggested that the above section only applies to offences created by statute passed subsequently to that Act, and that it does not apply to felonies at common law. If that is so the prisoner ought to be separately indicted for the attempt to commit the common law felony. But the words of the statute seem to be very general, and would probably be held to include felonies at common law. See note to R. v. Bain, L. & C. 129; R. v. Hapgood, L. R. 1 C. C. 221; 39 L. J., M. C. 83, post, p. 314.

Nature of the attempt. It is not easy always to decide whether or not an indictable attempt has been committed. The following cases may there must have been some ineffectual act or acts towards its accomplishment. People v. Lawton, 56 Barb. 126. S.

In an indictment for an assault with attempt to steal, the goods need not be described when nothing has been taken. Grogan v. State, 63 Miss. 147.