The building.--Any edifice capable of affording shelter for human beings is a "building"-51 Cal. 325; 31id. 215. It need not be a finished structure; it is sufficient if it is conn cted and enure-12 Cox C. C. 106; Law R. 1 C. C. 338; its state of completeness is a question of fact-1 Met. 258; 12 Cox C. C. 106; Law R.1 C. C. 33; but the remains of a wooden house after a fire is not a building-32 Up Can. Q B. 429; S. C. 1 Green CR 201. A church is a building within the statute-1 Leach, 313; id. 320; or a schoolhouse-2 Root, 516; 4 Gill. & J 402; 5 Mon. 156; or a building removed by a city, and fitted up for pub'e use-2 Allen, 150 or a ves e-sce Brown Adm. 156. In arson, house, shop, workshon, etc.. have the same meaning as in cases of burglary-5 Up. Can. Q. B. (O. S.) 522. A war house means any building used as such at the time-10 Ohio St. 287. Where there are no interior communications b veen two parts of a house, the separately occupied parts are considered as seperate buildings-29 Conn. 342. See Desty's Crim. Law, titles ARSON, BURGLARY.

449. Any building which has usually been occupied by any person lodging therein at night is an “inhabited building," within the meaning of this chapter.

Habitation.-Any bufding is a dwelling-house which is wholly or in part usually occupied by persons lodging therein at night-1 Parker Cr. R. 252. Every house for dwelling and habitation is taken to be a mansion house-4 Ga. 339. House means not only the dwelling but all ont-houses which are pare thereof, such as barns and stables-3 Dutch. 323; 8 Joues (N. C.), 354; id. 455; id. 45; 63 N. C. 4 3; 4 Conn. 4: 4 Dev. & B. 185; 45 Ala. 30; 3 Rich. 242; 31 Me. 523; 2 Mich. 250; 5 Car. & P. 535; 13 Gratt. 763. A jail is an inhabited dwelling-18 Johns. 115, 41 Tex. 601; 4 Call. 109; 5 Tred. 350; 53 Ga. 33; contra, 49 Ala. 30; id. 33; 4 Leigh. 683; and see 22 Amer. Rep. 255. Where the entrance to a jail was through a dwelling-house, the entire structure is a house20 ̊ Conn. 245; 2 W. Black. 63. Curtilage means a court-yard or the space within any inclosure round a dwelling-house-10 Cush. 473, and includes a summer-house-Russ. & R. 6, and a barn with hay and grain in it-5 Watts & S. 35; 1 Moody C. C. 239; contra, 81 Ill. 555; or a barn communicating with the dwelling-2 Mich. 250; or a building thirty-six feet distant, used as a dormitory for the owner's servants-8 Mich. 150.

450. The phrase "night-time," as used in this chapter, means the period between sunset and sunrise.

See sec. 463 and note.

451. To constitute a burning, within the meaning of this chapter, it is not necessary that the building set on fire should have been destroyed. It is sufficient that fire is applied so as to take effect upon any part of the substance of the building.

The burning.-Buruing is an essential ingredient of the crime-29 Ga. 105; 24 Ark. 44; 3 Ired. 570; 16 Johns. 203; 16 Mass. 105; 40 Ala. 65; 2 Term. Rep. 255; but the house need not be entirely consumed; it is sufficient if any part is burned-5 Ired. 350; 110 Mass. 403. The offense is complete, although the fire be put out, or go out of itself-5 Ired. 350; 3 id. 570; 16 Johns. 203; 16 Mass. 105. That something in the house was burned is not sufficient-40 Ala. 659; 1 Car. & M. 541. It is not essential that the woodwork of the house should blaze-Ryan & M. 398; 1 Car. & M. 541; if the wood be charred so as to destroy its

fiber it is sufficient-46 Cal. 354; 50 id. 304; 3 Ired. 570; 5 id. 350: 18 Johns. 115; 110 Mass. 403; 1 Car. & M. 541; 9 Car. & P. 45. The sufficiency of the burning is a question of fact-5 Cush. 427.

452. To constitute arson it is not necessary that a person other than the accused should have had ownership in the building set on fire. It is sufficient that at the time of the burning another person was rightfully in possession of, or was actually occupying such building, or any part thereof.

Ownership. It is not arson to burn one's own property-8 Gratt. 627; 2 Pick. 320; 12 Up. Can. C. P. 163, unless it be accompanied by an injury to or a design to injure some other person-2 Pick. 325; 5 Stewt. & P. 175; 2 East P. C. 1031; Cro. Car. 377; Cald. 357; but see 19 N. Y. 537; 51 N. II. 176; 12 La. An. 352. A husband cannot be guilty of arson in burning the house occupied by himself and wife-26 Mich. 106; S. C. 1 Green C. R. 547; nor a wife for setting fire to her husband's house1 Moody C. C. 182; but a person setting fire to a house in the city, the house being occupied by himself and other tenants, is a great misde meanor-5 City II. Rec. 851; so, if the owner of a building set fire to it with intent to burn the adjoining property, he is guilty of arson-3 Rich. 242; 47 11.533; or burning his house to injure an insurer-29 Cal. 257; 32 id. 160; 1 Parker Cr. R. 550; 2 La. An. 157; see 28 Ala. 71; Russ. & R. 138; 4 Fost. & F. 1102. The building must be the property of another, but such a possession as gives a special property while it exists is sufficient-12 Conn. 457; 2 Johns. Iv5. The tenure or interest in the building is not to be considered-52 Ala. 357; 2 Johns. 205, as mortgagor or mortgagee-1 Leach, 218; id. 242; id. 220; Cro. Car. 376; Cald. 37; see 7 Cold. 35. At common law a tenant cannot be indicted for willfully burning the house that he lives in-12 Conn. 487; 3 Dutch. 323; 3 Blackf. 455; 1 Leach, 218; id. 220; id. 242; id. 253; but under the statute a lessee may be guilty of arson for burning the property of the lessor or other property adjoining-50 Cal. 304; 15 N. Y. 551; 1 Parker Cr R. 560; 5 Stewt. & P. 175; 10 Ohio St. 257; 61 Mo. 276; 2 East P. C. 1030; id. 1031. If the lessor, being the general owner, burns the property while occupied by the lessee, he is guilty-2 Johns. 165; 13 Coun. 487; 7 Blackf. 168; 29 Conu. 342; 8 Gratt. 635; 110 Mass. 503; 1 Moody C. C. 344. One entitled to dower may be guilty-5 Stewt. & P. 175; 8 Gratt. 624; 5 Barn. & Ald. 27; or a servant who usually dwells there while the legal possession is in another-2 Pick. 325; 2 East P. C. 1027; id. 1034; 1 Leach. 246; but a servant who sets fire to his master's house by his procurement is not guilty-66 Me. 307; 22 Amer. Rep. 569.

453. Arson is divided into two degrees. Degrees of arson-53 Cal. 627.

454. Maliciously burning in the night-time an inhabited building in which there is at the time some human being, is arson in the first degree. All other kinds of arson are of the second degree.

Occupation.-Occupation is an essential element of the offense of arson-47 Ga. 572. So, an unfinished building not yet occupied is not within the purview of the statute-20 Ind. 242; id. 219; 20 Conn. 245; 45 N. Y. 153; 10 Cush. 478; 13 Gratt. 763; contra, í Met. 253; 4 Ga. 335; Strob. 372. That it was intended for occupancy, or is capable of be

ing occupied, is not sufficient-33 Me. 30; 31 id. 523; 3 Cush. 529; or if it was merely casually occupied-13 Gratt. 763; or if the occupants be absent without intent to return-10 Cush. 478; 13 Gratt. 763. But if the house is burned during a temporary absence, it is the burning of an occupied dwelling-48 Ga. 116; 33 Me. 30; see 31 id. 523; 3 Cush. 529; 10 id. 478; 20 Coun. 245. But it must be usually dwelt in-53 Miss. 384; or occasionally used-4 Ga. 342; and it is immaterial whether the person charged had knowledge of its occupancy-1 Parker Cr. R. 252.

455. Arson is punishable by imprisonment in the State prison, as follows:

1. Arson in the first degree, for not less than two years.

2. Arson in the second degree, for not less than one nor more than ten years.

459. Every person who enters any house, room, apartment tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary. [Approved Feb. 9th, in effect May 1st, 1876.]

Burglary defined.-Burglary is the breaking and entering in the night-time the dwelling of another, with the intent to commit a felony therein-52 Cal. 454; 7 Mass. 247; whether the felonious intent be executed or not-7 Mass. 247; 1 Coxe, (N. J.)441; 37 Mich. 544; 4 Parker Cr. R. 153; 40 Ala. 334. The breaking and entering must be done feloniously -9 W. Va. 456. It is larceny and not burglary for a guest to steal from a bar-room where he had a right to enter-12 N. II. 42. In California, the Code recognizes no such offense as burglary mixed with larceny or another felony-29 Cal. 622; see 1 Tex. Ct. App. 211. That the lar ceny is merged in the burglary-see 20 Pick. 350; 35 Tex. 91; 31 id. 587; 42 id. 503. The attempt at burglary is indictable at common law-12 Cox C. C. 155; 9 id. 98; Leigh & C. 129; and breaking into the yard of a dwelling-house with intent to commit burglary is an attempt-6 Phila. 305.

The breaking.-There must be a breaking in, actual or constructive -1 Coxe, (N. J ) 439; 82 Pa. St. 306; 25 Gratt. 903. There must be a breaking, removing, or putting aside some part of the dwelling-house relied on as security against intrusion-13 Ired. 244; 20 Iowa, 413; 68 Ill.271; 105 Mass. 588; but see 3 Parker Cr. R. 552; 1 Hill, 233; 1 Strange, 481; Hill & D. 63. A door or window inust be shut, but it need not be locked, bolted, or nailed, a latch to the door and the weight of the window being sufficient-same cases; but it must be shown that they were shut-1 Coxe, (N. J.) 43); 3 Parker Cr. R. 552; 20 Iowa, 413; 13 Ired. 244. Very slight force will suffice to constitute a breaking, as lifting a latch-1 Hale P. C. 552; and if the door be closed, it is not nceessary that it be latched-13 Ired. 244; 20 Iowa, 413; 3 Parker Cr. R.552; raising or pulling down a window-sash- Miss. 705; 5 Tex Ct. App. 74; 7 Car. & P. 441; Russ. & R. 450; although kept down only by its own weight and not fastened, and although there is an outer shutter not closed-Russ. & R. 450; 1 Moody C. C. 377; 3 Parker Cr. R.552; 20 Iowa, 413; 27 Mich. 151; 13 Ired. 244; 3) Miss. 705; entering a chimney or other unusual place-36 Ala. 281; 42 Tex. 276; 7 Jones, (N. C.) £0; 52 Ala. 376; S. C. 1 Am. Cr. R. 362; 8 Pick. 354; 1 Coxe, (N. J.) 439; 7 Dane's Abr. 136;

Russ. & R. C. C. 450; 2 Car. & P. 628; or pushing open a transom-27 Mich. 151; 19 Alb. L. J.436; or loosening any fastening which the owner has provided-see 4 Bl. Com. 226; 2 East P. C. 437; or removing a covering, if there be no partial opening-105 Mass. 538; 1 Moody C. C. 178; 7 Car. & P. 441; as a screen or netting over a window-8 Pick. 354; sce 22 Mich. 229; 7 Gratt. 641; or raising a grating and entering-22 Mich. 229; or lifting the flap of a cellar door held down by its own weightRyan & M. 377; 2 East P. C. 487; contra, 4 Car. & P. 231; doubted-Russ. &R. C. C. 157; or pushing open a hinged window fastened by a wedgeRuss. & R. C. C. 355; or by breaking or removing a window-pane and inserting hand or finger-Russ. & R. C. C. 499; 1 Car. & P. 300; 9 id. 44; or by breaking more fully one already broken-9 id. 44; 1 Ryan & M. 327; or by taking out the glass from a door-Russ. & R. C. C. 417; or by breaking a glass window without removing the inside shutter-id. 499; 1 Car. & P. 300; or by making an opening by means of fire-49 Ala. 344; 2 Ad. & E. 827; 7 Car. & P. 432; 8 id. 747.

Constructive breaking.-Constructive breaking may be committed by the use of threats, or by artifice and frand-43 Ala. 17; 13 Ind. 336; 2 Tex. Ct. App. 412; Phill. (N. C.) 186; 63 N. C. 207; 1 Leach, 403; as by artifice and fraud procuring the door to be opened, by ringing the door-bell-85 Pa. St. 54; or knocking at the door, and when opened, rushing in-4 Bl. Com. 226; or gaining admission on pretense of busi ness-Kelly, 42; or under color of legal process-1 Leach, 234; or deluding a boy to let her in, and sending him on a message, robbing the house-1 East P. C. 435; or with intent to commit a felony, gaining admission by some trick-63 N. C. 207; 18 Ohio St. 303; 82 Pa. St. 365; 85 id. 54; Phill. (N. C.) 186; but such entry must be immediate, or so soon that the owner could not refasten the door-9 Ired. 463. So, where the owner opens the door to repel the intruder, and an entry is made -2 East P. C. 436; 1 Russ. Cr. 792; or where a loger robs others of the house while they are at prayers-Kelly, 62; or if entrance is obtained by conspiracy-2 Russ. Cr. 10; as where a servant conspires with a thief to let him in-2 Strange, 81; Hut. 20; Kelly, 67; but if he admit him for the purpose of detection, it is not burglary-43 Cal. 277; 40 Ala. 334; Car. & M. 218; 2 Leach, 913. Where two combine to cominit a burglary, and one only enters, both are guilty-2 Parker Cr. R. 11. So, if one entices the owner away, and the other enters-12 Ohio St. 145. A conspiracy to commit a burglary is a felony-2 Tex. Ct. App. 192.

Breaking out.-Breaking out of a house is not burglary at common law-55 Ala. 123; 82 Pa. St. 306; S. C. 5 Week Notes, 4); 70 N. C. 239; 2 East P. C. 40; 6 Cox C. C. 369 centra, 43 Conn. 459. But entering in the night-time, and breaking at to escape, is burglary-43 Conn. 489; but see 82 Pa. St. 306; 70 N 239; as by lifting the latch of a door-8 Car. & P. 743; seo Rosc.. Ev. 373; or having entered by the chimney, breaking the inside fastening of a window-52 Ala. 376; 36 id. 281; 3 Green. Ev. § 76; or breaking out of an inner door-8 Cox C. C. 345; 8 Car. & P. 747; 2 East P. C. 488; 1 Hale P. C. 524; or getting the head through a skylight-Jebb C. C. 93. But entering in the day-time through an open window, or an open door, and cscaping by breaking out a window, is not burglary-6 Parker Cr. R. 638; 82 Pa. St. 306; 22 Am. R. 758; 55 Ala. 123; contra, 43 Conn. 48); 21 Am. R. 665; but it is made so by statute-70 N. C. 239; 16 Am. R. 769.

Constructive entry.-Sending in a child of tender years to bring out goods is a constructive entry-1 Hale P. C. 555. Every entrance, except by the consent of the owner or his agent, is a burglarious entry-1 Tex. Ct. App. 525; and a consent of detectives is the consent of their employers-53 Cal. 185; 3 Tex. Ct. App. 156. When some stand outside while others enter, all are equally guilty-3 Inst. 63; 2 East P. C. 496; 1 Hale P. C. 439.

The entering.-Au entering is necessary, but the least entry is suffi cient-5 Tex. Ct. App. 74; Russ. & R. C. C. 430; id. 341; 1 Moody C. C,