CHAPTER VI. INJURIES TO PROPERTY. ONE of the criminal consolidation acts, 1861, (y) deals with arson and malicious injuries to property. (2) Of these offenses the present chapter will treat. ARSON. Arson is the malicious and willful setting fire to any building. The term does not strictly comprise cases of setting fire to other things, such as corn, ships, etc.; but it will be convenient to treat here of them also. The statute in different sections deals with setting fire to: Churches, chapels, and other places of divine worship (§ 1). Dwelling-house, any person being therein (§ 2). House, stable, coach-house, out-house, warehouse, office, shop, mill, malt-house, hop-oast, barn, storehouse, granary, hovel, shed, or farm, or any farm building, or any building or erection used in farming land, or in carrying on any trade or manufacture, with intent thereby to injure or defraud any person (§ 3). Station, warehouse, or other building belonging to any railway, port, dock, or harbor, or any canal or other navigation (§ 4). Public building, as described in the act (§ 5). All these cases of arson are felonies, punishable by penal servitude to the extent of life. Arson in the case of any other building is punishable by penal servitude to the extent of fourteen years(.a) Besides these enactments with regard to setting fire to (y) 24 and 25 Vict., c. 97. (2) When merely a section is quoted in this chapter it must be under stood to refer to that statute. (a) 8 6. buildings, there are others dealing with the burning of other kinds of property. [Arson at common law was an offense against the security of habitation. It was the willful and malicious burning of the house of another. House is a dwelling, and includes not only the mansion proper, but also the structures appurtenant to it. And the burning of a barn, though it be no part of a mansion, if it had hay and corn in it, was arson at common law.(1) In a civil case it was held that a building intended for and constructed as a dwellinghouse, but which had straw and agricultural implements deposited in it, was neither a house nor a barn.(2) But where the entrance to a jail was through the dwellinghouse of the jailer, and prisoners were sometimes suffered to lie in the dwelling, it was held the dwelling was part of the prison and the entire structure was a house.(3) The house of another was not a house owned by another, but a house which was another's to occupy. If one burned the house which he owned and occupied, he did not commit arson; nor did a tenant, who burned the house which he rented and occupied. One who was in possession under an agreement for a short lease did not commit arson by burning such house.(4) But where the overseers of the poor put a pauper and his family as sole occupants into a house and let them stay there without paying rent, it was held the occupant had no interest in the house, that his possession was the possession of the overseers, and it was arson for him to burn it.(5) If the owner and occupant is temporarily absent, leaving his effects in it, the burning of it is arson.(6) But if the house be vacated without an intention to return, the burning is not arson.(7) A landlord (1) Sampson v. Watson, Watts & Ser. 385. (2) Elmore v. St. Briavell's, 8 B. & Cres. 461. (3) Rex v. Donnavan, 2 W. Black. 683; State v. McGowan, 20 Conn 245. (4) Rex v. Breeme, 1 Leach, 220. (5) East, P. C. 1027. (6) Johnson v. State, 48 Ga. 116. (7) Commonwealth v. Barney, 10 Cush. 478; Hooker v. Common wealth, 13 Grattan, 763. who burns the house occupied by his tenant, commits arson.(1) Where a statute makes it arson to burn a house "the property of another," a tenant in possession may be convicted for burning the house which he occupies.(2) Where husband and wife occupy together a house belonging to the wife, it is not arson for him to burn it.(3) Nor for the wife to burn her husband's house. (4) But a servant has no possession, and he is guilty of the offense if he burns the house.(5) Arson in Ohio is extended, by statute to cover any private building, the property of another, of the value of fifty dollars, any public building, any watercraft of the value of fifty dollars, any toll-bridge, any other bridge of the value of fifty dollars, and setting fire to or attempting to set fire to any thing in or near such, with intent to burn the same. It is made an equal offense to maliciously burn or set fire to any building of the value of fifty dollars, any goods or chattels of the value of fifty dollars, or any watercraft, the same being insured, with intent to prejudice the insurer. To maliciously set fire to or burn any stack, grain, crib, fence, boards, etc., rails, tan-bark, or timber, is felony, if the property is worth thirty-five dollars or more, and a misdemeanor, if worth less. It is also a misdemeanor maliciously or negligently to set fire to woods, prairies, or grounds, not his own, or maliciously permit fire to pass from his own, to the destruction of property of another. 74 Ohio L. 247, 248. The Kentucky statute prescribes the punishment for arson, leaving arson to be defined by the common law; and makes it felony to willfully burn any public building, or the office or depot of any railroad or canal, gas or telegraph company, any warehouse, storehouse, or any other house whatever, or any stack, rick, or shock of grain, or any timber of wood prepared for any purpose of use or sale, or any tanbark, bridge or causeway, any kind of mill or factory, any (1) Rex v. Harris, Foster Cr. L. 113. (5) Rex v. Gowen; note to 2 East P. C. 1027; and note to Pedley's case, 1 Leach Cr. Law, 246. railroad car, engine, wagon, buggy, carriage, threshing machine, etc., or any watercraft, or to attempt to commit any above offense. If any person willfully and maliciously burn any house within the walls of the penitentiary, or any part of such house, or if any person willfully, maliciously, and unlawfully burn any occupied dwelling-house, or any charitable institution, and death ensue from the burning of such dwelling or institution, the punishment shall be death or confinement for life in the penitentiary, at the discretion of the jury. Rev. Stat. (1877), 327, 328. In Indiana, it is arson to willfully and maliciously set fire to a dwelling-house, out-house. barn, stable, boat, watercraft, mill, distillery, manufactory, artificer's shop, storehouse, room occupied as a shop or office for professional business, or building of any kind, or printing office of another, or any public bridge, court-house, jail, market-house, church, seminary, or college or building belonging thereto, or piled cord-wood, ricks or shocks, or growing grain, or fence, of the value of twenty dollars, or any public building connected with any railroad, or any bridge, or any part of the structure of a railroad; or, with intent to defraud the insurer, to set fire to any building or structure whatever, finished or unfinished, whatever, or any goods, wares, merchandise, or other chattels, which shall be insured against loss by fire; and if the life of any person be lost. thereby, the offender is guilty of murder in the first degree. Rev. Stat. (1876), 437, 438. Under the statute, before the amendment of 1867, it was held that an indictment for burning "a certain building called a saloon," was insufficient, for not showing for what purpose the building was occupied.(1) And that it is not arson to burn an unfinished dwelling, not yet occupied, that was not insured. (2) The statute of Illinois is nearly the same as that of Ohio, and also provides that if the life be lost in consequence of an arson, the offender shall be deemed guilty of murder, and provides that if an owner, lessee, or occupant sets fire to, or attempts to set fire to, his own premises, with intent to burn (1) State v. O'Connell, 26 Ind. 266. (2) State v. Wolfenberger, 20 Ind. 242. the building or property of another, he shall be deemed guilty as if he burned, or attempted to burn, the building or property of another. Rev. Stat. (1877), 351. The statute of Iowa is nearly the same as that of Ohio, but has many discriminations as to the degree of punish ment, depending upon the fact, whether the structure is inhabited or not, and whether the burning is in the night or day. It provides, also, that the statute applies to a married woman who commits any of the offenses described, though the property set fire to or burnt may belong wholly or partly to her husband. Rev. Stat. (1873), 603, 604. The statute of Michigan is, except as to the particular terms of imprisonment prescribed, substantially the same as that of Iowa. Kev. Stat. (1871), 2078--2080.] It appears to still remain a felony, punishable with death, to set fire to any of her majesty's ships of war,(m) or works or vessels in the docks of the port of London ;(") but sentence may be recorded instead of being given openly. In viewing the crime, generally, we may notice : i. The character, moral and physical, of the setting fire. ii. The intent to defraud or injure (when that is an es sential of the crime). i. The act must be done unlawfully and maliciously.— Therefore, no mere negligence or mischance will amount thereto. But it is not necessary that the offense should be committed from malice(0) conceived against the owner of the property.(p) For example, if the accused, intending to set fire to the house of A., accidentally sets fire to the house (m) 12 Geo. 3. c. 24, § 1. (n) 39 Geo. 3, c. 69, 1. See also naval discipline act, 29 and 30 Vict., c. 109, 34. (6) Here again the signification of malice as a motive, equivalent to ill-will, seems to have been present to the minds of the legislators. On the other hand, "maliciously" is to be taken in the technical sense of "with criminal intention." (p) 58. This section applies to all offenses coming within the arson and malicious injuries act. |