(394) Burning a stable within the curtilage of a dwelling-house. Rev. sts.
of Mass., ch. 126, § 3.

(395) Burning a city hall in the night-time. Rev. sts. of Mass., ch. 126, § 3.
(396) Burning a meeting-house in the day-time. Rev. sts. of Mass., ch.

126, § 4.

(397) Burning a vessel lying within the body of the county. Rev. sts. of Mass., ch. 125, § 5.

(398) Burning a dwelling-house with intent to injure an insurance company. Rev. sts. of Mass., ch. 126, § 8.

(399) Setting fire to stacks of hay. Rev. sts. of Mass., ch. 126, § 6.

(400) Burning a dwelling-house in the night-time. Mass. st., 1852, ch. 259, § 3. (401) Burning a flouring mill, under Ohio statute.

(402) Burning a dwelling-house, under Ohio statute.

(403) Burning a boat, under Ohio statute.

(404) Attempt to commit arson. Setting fire to a store, under Ohio statute.

(405) Burning a stack of hay, under Ohio statute.

(406) Burning a meeting-house, under the Vermont statute.

(407) Burning one's own house, with intent to defraud the insurers.

(408) Burning a barrack of hay, under Pennsylvania stat.

(409) Burning stable, under same.

(389) General frame of an indictment for arson at common law.(a)

That A. B., late, &c., a certain house(b) of one C. D., (c) there situate, feloniously, wilfully, (cc) and maliciously did set fire to, and the same house then and there, by such firing as aforesaid, feloniously, wilfully, and maliciously did burn, against, &c. (Conclude as in book 1, chap. 3.)

Pennsylvania.

(Analysis of Arson in Wh. C. L.)

Arson, dwelling-house, barn, out-house, &c., § 1640.

Burning state-house, &c., church, &c., meeting-house or library, § 1641.
Punishment, § 1642.

Firing barn, stable, rick of hay, &c., out-house, &c., with intent to de

stroy same, § 1643.

Punishment, § 1644.

Firing bridge, &c., 1645.

Burning dwelling-house, kitchen, store, &c., factory or other building, or

pile of boards, &c., § 1646.

Setting fire to same, with intent to burn, § 1647.

Punishment, &c., § 1648.

Burning meeting-house, college, banking-house, mill, &c., § 1652.
Burning pile of wood, tobacco-house, stack of wheat, &c., § 1653.
Punishment, § 1654.

Burning bridge, lock, dam, &c., § 1655.

Setting fire to woods, &c., § 1656.

Burning with intent to defraud underwriter, § 1657.

B. ARSON AT COMMON LAW.

I. Burning, § 1659.

II. Property burned, § 1667.

III. Indictment, § 1673.

(a) This form, with a portion of the notes to it, is drawn from Stark. C. P. 437. (b) This is enough; Wh. C. L. 625. Arson might at common law be committed, not only by burning the dwelling-house, but also the out-houses, which were parcel of the dwelling-house; Wh. C. L. § 1667; 1 Hale 570; 3 Inst. 67, 69; 1 Hawk. c. 39, s. 1,2; and it is not necessary to allege the burning of the dwelling-house, but only of the house simply; 1 Hale 567, 570; 3 Inst. 67; 1 Hawk. c. 39, s. 1. In Glandfield's case, East P. C. 1034, it was holden that out-houses generally was a sufficient description under 9 Geo. I. c. 22, without showing of what kind.

(c) The allegation of ownership is material, for it must appear that the offence was committed against the property of another, and this allegation must be distinctly proved; see Wh. C. L. 626; Com. v. Wade, 17 Pick. 395; Pedley's case, Leach 277;

Breeme's case, Leach 261; Spalding's case, Leach 251; Holmes' case, Cro. Car. 376; 3 Inst. 66. In the case of the Rickmans, East P. C. 1034, the defendants were charged with the arson of a certain house, situate in the Parish of Ellingham, &c., and, after conviction, all the judges held, that the conviction was wrong, because the indictment did not state the ownership. It appeared in that case that the house belonged to the parish, and that they suffered one Thomas Early to live in it, but in whom the legal estate was vested was unknown; and the judges held, that it might have been laid to be the property of the overseers, or of persons unknown. Where there is a doubt in which of several persons the property vests, it should be differently described in different counts, in order to obviate any objection on the score of variance. If the occupation be merely permissive, as by a pauper, of a house belonging to the parish, the property cannot be laid in him; vide supra, Rickman's case; and if such pauper or mere servant burn the house which he inhabits, even exclusively, he is guilty of arson; Gowen's case, East P. C. 1027. Otherwise, if the defendant has possession under a lease for years; Holmes' case, Cro. Car. 376; 3 Inst. 66; 1 Hale 568; Breeme's case, Leach 261; Pedley's case, Leach 277; or as mortgagor; Spalding's case, Leach 258. But it seems that if the mere reversion be in the defendant, who has not possession, he may be guilty of the offence, by burning the house; Harris' case, Fost. 113; East P. C. 1023. In Spaulding's, Breeme's, and Pedley's cases, it was holden, that in respect of the property against which the offence was committed, the statute 9 Geo. I. c. 22, did not alter the common law. The offence is against the possessions, and the house, &c., should be described as belonging to the person who has possession coupled with an interest; for if the occupation be merely permissive, the house ought not to be described as the occupier's; see Rickman's and Cowen's cases, supra. In Glandfiel's case, East P. C. 1034, it appeared that the out-houses burnt, including the brew-house, were the property of Blanche Silk, widow, as also was the dwelling-house in which she lived with her son, J. S.; that the son also occupied the out-houses, with the exception of the brew-house, on his own account, but without any particular agreement with his mother; that she repaired the dwelling-house and out-houses, and that they jointly contributed to the ingredients for the beer, which was brewed in the brew-house, and which was used in the family. Mr. J. Heath held, that the brew-house ought to be laid as in their joint occupation, but the other out-houses as in the occupation of the son; and upon the indictment so drawn, the prisoner was convicted and executed.

On an indictment for setting fire to a barn in the night-time, whereby a dwellinghouse was burned, charging the barn to be the property of G. and N., it appeared that G. was the general owner of the barn, and that part of it was in the occupancy of N., and a part of it used for the purposes of a stage company, who had hired it from G. by parol agreement, for no specified time, G. himself being a member and agent of the company, and exercising no different control over this part of the premises than he exercised over the other way-stations of the company. It was held, that the company, and not G., was the occupant of this part of the barn; and that the allegation of the indictment, that the property was N. and G.'s, was not supported by the proof; Com. v. Wade, 17 Pick. 395.

A room in a large building, which room was separately leased by the owner of the building to a merchant, who occupied it as a store, and having no direct communication with the other parts of the building, is properly laid in the indictment for arson as the property of the lessee; State v. Sandy (a slave), 3 Iredell 570.

If a man, by setting fire to his own house, endanger others which are contiguous, he may be indicted for the misdemeanor, and it is unnecessary in such case to aver an intention to burn the contiguous houses; 1 Hale 568; Cro. Car. 377; Scholfield's case, Cald. 397. But if the defendant set fire to his own house with intent to defraud the insurers, and the house of his neighbor be burnt in consequence, the offence will amount to arson; per Grose J., in giving judgment in Probert's case, East P. C. 1030. "And in Isaac's case, East P. C. 1031, where the offence committed under such circumstances was laid as a misdemeanor, Buller J. directed an acquittal on the ground that the misdemeanor merged in the felony. And if the defendant set fire to his own house with intent to burn his neighbor's house, and the latter be burnt in consequence, the offence is as much arson as if the defendant had immediately set fire to his neighbor's house; therefore if A., intending to burn B.'s house, set fire to his own, and B.'s is burnt in consequence, the indictment may charge A. directly with the wilful and malicious burning of B.'s house; 1 Hale 569; East P. C. 1034. The words maliciously and wilfully are descriptive of the offence as ousted of clergy by the statute 4 and 5 P. and M. c. 4; but they are no part of the description under the statute 9 Geo. I. 22; though under the latter statute to oust the offender of clergy, it must appear that the act was wilful and malicious, and it seems to be safer so to aver it. See 1 Hale 567, 569; 3 Inst. 67; East P. C. 1033, 1021, Minton's case." Starkie's C. P. 438. (cc) As to the necessity of these terms, see Wh. C. L. 625.

(390) Burning unfinished dwelling-house, under Mass. Rev. Stat. ch. 126, § 5.(d)

That on, &c., at, &c., about the hour of twelve o'clock in the night-time of the same day, a building of one P. U., of, &c., there situate, erected by the said P. U. for a dwelling-house, and not completed or inhabited, feloniously, wilfully and maliciously did set fire to, and the same building, so erected for a dwelling-house, then and there, by the setting and kindling of such fire, did unlawfully, wilfully and maliciously burn and consume, against, &c., and contrary, &c. (Conclude as in book 1, chap. 3.)(ƒ)

(d) Com. v. Squire, 1 Met. 258. This was objected to, because there was no averment that the building alleged to have been burnt was other than that mentioned in Rev. Stat. c. 126, s. 5. The court held, however, that this was not necessary, and further that there was no insensibility in "a building erected" being unfinished. The word "feloniously," which was part of the indictment, but which is omitted in the text, was rejected as surplusage.

(f) Com. v. Squire, 1 Met. 258. Under this indictment the court said: "The only remaining question to be considered is, whether the offence is so charged in this indictment, that after a conviction or acquittal thereon it will protect the defendant against a second indictment for the same act, supposing the facts would have warranted originally an indictment for the offence of the higher degree, embraced in the third section. The difficulty here supposed also arises from not stating in the indictment the exception contained in the fifth section. It does not seem to us, that the security of the party against being again charged for the same act, necessarily requires the form of the indictment to be such as is suggested by the defendant's counsel. Upon this point, also, some aid may be derived from considering the course of proceeding in prosecutions for larcenies. Larcenies, by our statute, are of various grades, and are punished with greater or less severity, according to the aggravation of the offence; and these different grades of offence are punished under the provisions contained in different and distinct sections of the statute. But we know very well that in larcenies, indictments are often found, charging the inferior grade of crimes, and omitting the circumstances of aggravation, when all the facts existing in the case would, if disclosed to the jury, bring the case within the higher grade of larcenies. Would it be a defence to such indictment, on the trial before the petit jury, that the defendant had committed the offence charged, but with certain aggravating circumstances not charged. It seems to us not; and that when the offence charged in the indictment, and the offence actually committed, are both merely larcenies, the greater offence includes the less, and evidence proving the greater offence will support an indictment for the smaller offence. Such being the case, it would seem necessarily to follow, that the conviction or acquittal of a party thus charged with the minor larceny, must be a bar to a subsequent indictment charging the same larceny with aggravating circumstances. The same rule would seem properly to apply to the different gradations of offences, of maliciously burning buildings, as provided for in the third and fifth sections of the Rev. Stat. c. 126, which is also the same statute in which there are created four distinct grades of larcenies, with different punishments annexed to them. The offences made punishable by the third and fifth sections are both only misdemeanors, and the same courts have jurisdiction of each. There would be but one criminal act in the malicious burning of a building, whether that building alone was consumed, or it occasioned the burning of any building described in the third section. Taking the case under those limitations, we think if the government proceed by an indictment for the smaller offence, and on trial thereof there be a judgment of conviction or acquittal, such judgment would be a legal bar to a second indictment charging the same offence with aggravation; State v. Cooper, 1 Green 362. Upon the whole matter we are therefore brought to the conclusion, that this indictment does set forth the burning of such a building as is described in the statute; that as the facts stated in the indictment constitute a misdemeanor and not a felony, the offence is well charged in the indictment as a misdemeanor, and if the word feloniously be rejected as surplusage, as we think it may be, that the indictment is sufficiently particular in its form of charging the offence to be punished; and finally, that a conviction or acquittal on this indictment would be a good bar to a second indictment for the same act, alleging it with the aggravating circumstances described in the third section of the statute. The result therefore is, that the motion in arrest of judgment must be overruled, and the punishment awarded against the defendant which is prescribed by law in such cases.

(391) For setting fire to a building, whereby a dwelling-house was burnt, in the night-time. Mass. St. 1852, ch. 259, § 3.

.

That C. D., late of B., in the County of S., laborer, on the first day of June, in the year of our Lord in the night-time of said day, with force and arms, at B. aforesaid, in the county aforesaid, a certain building, to wit, a barn, of one E. F., (a) there situate, feloniously, wilfully and maliciously did set fire to, and by the kindling of said fire, and by the burning of said building, the dwelling-house of the said E. F. there situate, was then and there in the night-time of said day, feloniously, wilfully and maliciously burnt and consumed; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. (b)

(392) For burning a dwelling-house in the day-time. Rev. Sts. of Mass. ch. 126, § 2. (c)

That C. D., late of B., in the County of S., laborer, on the first day of June, in the year of our Lord in the day-time of said day, with force and arms, at B. aforesaid, in the county aforesaid, the dwelling-house of one E. F. there situate, feloniously, wilfully and maliciously did burn and consume; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. (d)

(393) For setting fire to a building adjoining a dwelling-house in the daytime, whereby a dwelling-house was burnt in the day-time. Rev. Sts. of Mass. ch. 126, § 2.

That C. D., late of B., in the County of S., laborer, on the first day of June, in the year of our Lord in the day-time of said day, with force and arms, at B. aforesaid, in the county aforesaid, a certain building, to wit, a wood-house, of one A. B. there situate, and adjoining to the dwelling-house of the said A. B. there situate, feloniously, wilfully and maliciously did set fire to; and by the kindling of said fire and the burning of said building, the said dwelling-house of the said A. B. was then and there, in the day-time, feloniously, wilfully and maliciously burnt and consumed; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. (e)

(394) For burning a stable within the curtilage of a dwelling-house. Rev. Sts. of Mass. ch. 126, § 3.(f)

That C. D., late of B., in the County of S., laborer, on the first day of

(a) In the case of Commonwealth v. Wade, 17 Pickering, 395 (1835), which was an indictment under st. 1804, ch. 131, it was queried whether it was necessary to allege who was the owner or occupant of such building, or whether it was the building of another. But if the allegation is made, being descriptive of the offence, it must be strictly proved. Two indictments charging the defendant with setting fire to a barn, whereby a dwelling-house was burnt in the night, one alleging it to be the barn of A. and B., the other alleging it to be the barn of A. and C., were held not to be for the same offence. Commonwealth v. Wade, 17 Pickering, 395; Th. & H. Prec. 33. (b) Th. & H. Prec. 33.

(c) If the fire was set to a building adjoining the dwelling-house, the allegations in indictments upon this section will be conformable to the facts in the case; and set forth as in the preceding precedent. Th. & H. Prec. 33.

(d) Th. & H. Prec. 34.

(e) Th. & H. Prec. 34.

(f) This form may be adopted for the malicious burning, in the night-time, of any other building mentioned in the latter part of the third section of the statute, describ ing the building in the identical words of the statute. Th. & H. Prec. 34.

June, in the year of our Lord in the night-time of said day, with force and arms, at B. aforesaid, in the county aforesaid, feloniously, wilfully and maliciously did set fire to a certain stable of one A. B. there situate, and then and there being within the curtilage of the dwelling-house of the said A. B. there situate, and by the kindling of such fire, the aforesaid stable there situate and then and there being within the curtilage of said dwelling-house as aforesaid, was then and there, in the night-time, wilfully and maliciously burnt and consumed; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided.(g)

(395) For burning a city hall in the night-time. Rev. Sts. of Mass. ch. 126, $3.

That C. D., late of W., in the County of W., yeoman, on the first day of June in the year of our Lord in the night-time of said day, with force and arms, at W., in the County of W., the city hall of the City of W., in the County of W. aforesaid, there situate and erected for public use, to wit, the transaction of the municipal business of said City of W., then and there, in the night-time of said day, feloniously, wilfully and maliciously did burn. and consume; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. (h)

(396) For burning a meeting-house in the day-time. Rev. Sts. of Mass. ch. 126, § 4.

That C. D., late of F., in the County of M., laborer, on the first day of June, in the year of our Lord in the day-time of said day, with force and arms, at F. aforesaid, in the county aforesaid, a certain meeting-house there situate, of the property of the First Baptist Society in Framingham, in said county, and erected for public use, to wit, for the public worship of God, (i) then and there, in the day-time, feloniously, wilfully and maliciously did burn and consume; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. (j)

(397) For burning a vessel lying within the body of the county. Rev. Sts. of Mass. ch. 125, § 5.

That C. D., late of B., in the County of S., laborer, on the first day of June, in the year of our Lord in the night-time of said day, with force and arms, at B. aforesaid, in the county aforesaid, a certain vessel called the Rattler, the property of one A. B. and of E. F., G. H., etc., then and there lying and being at B., within the body of the said county of S., feloniously, wilfully and maliciously did burn and consume; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided.

(398) For burning a dwelling-house with intent to injure an insurance company. Rev. Sts. of Mass. ch. 126, § 8.

That C. D., late of B., in the County of S., laborer, on the first day of June, in the year of our Lord with force and arms, at B., in the County of S., feloniously, wilfully and maliciously did burn and consume, a certain dwelling-house there situate, of the property of one J. N., which dwelling

(g) Th. & H. Prec. 34.

(h) Th. & H. Prec. 34.

(i) If any other building erected for public use, as town-houses, court-houses, academies, etc, the public use for which it is designed must be set forth. Th. & H. 35. (j) Th. & H. Prec. 35.