of B., it is equally arson. Nor is it necessary that he should have had any intention of setting fire to any one's house; he will be guilty of arson, if, intending to commit. some felony of an entirely different nature, he accidentally sets fire to another's house. (q) So, also, will he be guilty, if, by willfully setting fire to his own house, he burns that. of his neighbor. If the act is proved to have been done willfully, it may be inferred to have been done maliciously, unless the contrary be proved. (r)

[But the wrongful act, which accidentally results in the burning of another's house, must be of a serious nature; otherwise, there will not be sufficient malice to constitute arson. Such wrongful act need not be felony.(1) But, if the act is a mere civil trespass, it is not sufficient.(2) And it has been held in the United States several times, that burning a hole in the floor of a jail, with the intent merely to effect an escape, is not arson.(3)]

As to the "setting fire," from a physical point of view, there must be an actual burning of some part, however trifling, of the house, etc. To support an indictment for setting fire to a house, it will not suffice merely to prove that something in the house was burnt.(s)

[If the floor is charred in a single spot, so that the fiber of the wood is there destroyed, the arson is complete.(4)]

ii. The intent to injure or defraud.-When it is necessary to allege this, there is no need to allege an intent to injure or defraud any particular person.(t)

When a person willfully sets fire to the house of another, the intent to injure that person is inferred from the

(q) v. p. 18.

(r) Bromage v. Prosser, 4 B. & C. 247.

(s) R. v. Russell, C. & Mar. 541.

(t) 60. This section also applies to the act generally.

(1) Rex v. Roberts, 2 East, P. C. 1030; Rex v. Isaacs, Ibid. 1031.

(2) 2 East, P. C. 1019.

(3) People v. Cotteral, 18 Johns. 115; State v. Mitchell, 5 Ire. 350; Delaney v. State, 41 Texas, 601.

(4) People v. Haggerty, 46 Cal. 354.

act. But if the setting fire is the result of accident, though the accused be engaged in the commission of some other felony, there can be no intent to defraud.

It is specially declared in the arson and malicious injuries act that its provisions apply to every person who, with intent to injure or defraud any other person, does any of the acts made penal, although the offender be in possession of the property in respect of which such act is done.(?)

MALICIOUS INJURY.

Having noticed one of the most dangerous forms of malicious injury-arson-it remains to consider others which are dealt with in the same act.(x) It will be remembered that here "malicious" is to be taken in its technical signification. To bring them within the pale of the criminal law, all the acts which we shall notice must be done maliciously and willfully.

[It was doubted whether, at common law, the misdemeanor called malicious mischief applied to injuries to real estate. The statutes which now describe in detail the acts that are indictable, include willful and malicious injury to realty as well as to animals and personal property generally. And some acts, generally depending upon the pecuniary amount of injury done, are made felonies. As these statutes are among the most frequently amended, and are in great detail, it is not needful to do more than to make this general reference.

It has been held that the malice which is an ingredient of this offense, is malice against the owner of the property, not malice against the animal or other property injured. Ordinarily, the willful injuring of another's property is sufficient evidence of malice against the owner. But if it does not appear that the injury was wanton or excessive punishment, or if it was done under the belief that the defendant had a right to commit it, and not from malice against the owner, it has been held that the offense was not com

(u) 8 59.

(x) 24 and 25 Vict., c. 97.

mitted.(1) Accordingly, in the English statute of 9 Geo. 4, it was expressly provided that the offense was complete, whether the malice was against the owner or otherwise. And, in some of the states, as in Massachusetts, New York, and Ohio, cruelty to animals, whether by overloading, or cruelly beating, or tormenting, or privation of sustenance, is made a specific misdemeanor.]

(1) Rex v. Pierce, 2 East, P. C. 1072; State v. Robinson, 3 Dev. & Bat. 130; State v. Newby, 64 N. C. 23; Hill v. State, 43 Ala. 335; Hobson v. State, 44 Ala. 381; State v. Wilcox, 3 Yerg. 278; Goforth State, 8 Humph. 37; State v. Enslow, 10 Iowa, 115.

BOOK III.

HAVING considered the essentials of crime in general, and examined the character of particular crimes, a second portion of the matter with which the Criminal Law is concerned now presents itself to our notice, namely, the proceedings, which have for their object the conviction of the guilty and the discharge of the innocent. But before entering upon the subject of Criminal Procedure, it will be well to inquire what measures the law has adopted in order to render those proceedings as far as possible unnecessary; in other words, to treat of the Prevention of Offenses.

(232)

CHAPTER I.

PREVENTION OF OFFENSES.

UNDER this head fall two classes of measures, differing considerably in their nature. The first is applicable chiefly in the case of those who have to some extent erred, but whom it is not deemed advisable to visit with punishment in the strict sense of the term. The second consists of general measures and provisions for the prevention of the commission or repetition of offenses.

A. The first mode of preventing offenses may be generally said to consist in obliging those persons, whom there is probable ground to suspect of future misbehavior, to stipulate with and give full assurance to the public that the offenses which are apprehended shall not happen. This is effected by their finding pledges or securities, which are of two kinds :

i. For keeping the peace. ii. For good behavior. But in the first place we shall go over the ground which is common to both.

Of what does this "giving security" consist? The person of whose conduct the law is apprehensive is bound, with or without one or more securities, in a recognizance or obligation to the crown. This is taken by some court or by some judicial officer. The recognizance is of the nature following: The person bound acknowledges himself to be indebted to the crown in the sum specially ordered, with a condition that it shall be void if he appear in court() on such a day, and in the meantime keep the peace either generally toward the sovereign and his people, or particularly also with regard to the person who seeks the security. Or, as is more usual, the recognizance may be to keep the peace for a certain period, an appearance in court not be. ing required. If it be for good behavior-then on condi

(a) v. Arch. Q. S. 269.