house aforesaid was then, to wit, at the time of committing the felony aforesaid, insured against loss and damage by fire by the Massachusetts Mutual Fire Insurance Company, the same then and there being an insurance company legally established, with intent thereby then and there to injure said insurance company; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. (k)

Rev. Sts. of Mass. ch. 126, § 6.

(399) For setting fire to stacks of hay. That C. D., late of B., in the County of S., laborer, on the first day of June, in the year of our Lord at B. aforesaid, in the county aforesaid, feloniously, (1) wilfully and maliciously burn and consume a certain stack of hay of the property of one J. N., then and there being; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. (m)

(400) For burning a dwelling-house in the night-time. Mass. St. 1852, ch. 259, § 3.

The jurors for the Commonwealth of Massachusetts, upon their oath present, 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, the dwelling-house of one A. B. 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. (n)

(401) Arson. Burning a flouring mill, under Ohio statute.

That A. B., on the twentieth day of January, in the year of our Lord one thousand eight hundred and forty-three, in the County of Cuyahoga aforesaid, wilfully, maliciously and feloniously did burn and cause to be burned, by setting fire thereto, a certain mill there situate, to wit, a flouring-mill, the property of one M. N., and of the value of three thousand dollars, (o) contrary, &c.

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

That A. B., on the first day of April, in the year of our Lord one thousand eight hundred and fifty-two, in the County of Hamilton aforesaid, did wilfully, maliciously and feloniously set fire to and burn one dwelling-house, then and there being the property of one M. N., of the value of fifty dollars and more, (p) contrary, &c.

(403) Arson. Burning a boat, under Ohio statute.

That A. B. and C. D., on the thirteenth day of May, in the year of our Lord one thousand eight hundred and fifty-three, in the County of Hamilton aforesaid, did wilfully, maliciously and feloniously set fire to and burn one. boat, then and there being, of the property of John Patton, of the value of fifty dollars and more, (q) contrary, &c.

(k) Th. & H. Prec. 37.

(1) The offence of burning stacks of hay, as provided against by Mass. St. 1804, § 3, 4, was not a felony. Commonwealth v. Macomber, 3 Mass. 254. But by St. 1852, ch. 37, it now is. In Maryland, the offence is not a felony, either by common law or by the acts of 1809 and 1845. Black v. The State, 2 Maryland 376.

(m) Th. & H. Prec. 37.

(0) Warren's C. L. 139.

(9) Warren's C. L. 137.

Th. & H. Prec. 37. (n) Th. & H. Prec. 32. (p) Warren's C. L. 137.

(404) Attempt to commit arson. Setting fire to a store, under Ohio statute. That A. B. and C. D., on the twenty-fourth day of June, in the year of our Lord one thousand eight hundred and forty-six, in the County of Logan aforesaid, the storehouse of one M. N., of the value of fifty dollars, there situate, feloniously, wilfully, unlawfully and maliciously did set fire to, with intent then and there, the said storehouse, feloniously, unlawfully, wilfully and maliciously to burn and destroy, (r) contrary, &c.

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

That A. B. and C. D, on the nineteenth day of October, in the year of our Lord one thousand eight hundred and fifty-one, in the County of Cuyahoga aforesaid, unlawfully, wilfully and maliciously, did set fire to, and thereby did then and there burn and destroy a certain stack of hay, of the value of twenty dollars, the property of M. N., there situate and being.(s)

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

That J. R., of, &c., on, &c., at, &c., a certain meeting-house, then and there situated, belonging to the First Calvinistic Congregational Society in Burlington aforesaid, erected for public use, to wit, for the public worship of Almighty God, did then and there wilfully, maliciously and feloniously set fire to and burn, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(407) For burning one's own house with intent to defraud the insurers.(h)

That A. B., &c., on, &c., at, &c., feloniously, wilfully, maliciously and unlawfully did set fire to a certain house being in the possession of him the said A. B., with intent thereby to injure and defraud the London Assurance, of houses or goods from fire (then and there being a body corporate), against, &c., and against, &c. (Conclude as in book 1, chap. 3.)

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

That H. C., late, &c., on, &c., at, &c., feloniously, unlawfully, wilfully and maliciously did set fire to a certain barrack of hay of A. B., there situate,

(r) Warren's C. L. 140, Ohio v. Davis, 15 Ohio 272.

(s) Warren's C. L. 140.

(g) State v. Roe, 12 Verm. 93. Collamer J.: "The indictment charged that the church or meeting-house belonged to 'the First Calvinistic Congregational Society in Burlington.' The proof of this allegation consisted in the paper presented and parol proof, that, from 1810, the society has been known by the name of the First Calvinistic Congregational Society, in the town of Burlington; and that they built, and have ever occupied the house. Was this sufficient? The existence of a society or corporation, de facto, is sufficient, and that is always shown by parol. Even had it been shown that, in point of fact, the society never were organized and never were a corporation, it was of no importance. The burning of the meeting-house would be arson within our statute, though it did not belong to a corporation.

"But, it is said, there is a variance in the name. They take no name in the writing. They might have many names by reputation, and they are not, in the indictment, attempted to be described by name, but by general character or tenet; and the words, as to location, in the town of Burlington, and in Burlington, are in substance the same. This whole allegation and its materiality, will come again under consider

ation on the motion in arrest."

(h) This form was prepared under the English statute, but it is probable that it would be good at common law, leaving out the "feloniously;" see Wh. C. L. § 1667–23. (i) This form, with the necessary alterations, is based on Chapman v. Com., 5 Wh.

with intent to destroy the same, to the great damage of the said A. B., contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(409) Burning a stable, under same.

That the said H. C., at the county aforesaid, on the day and year aforesaid, and within the jurisdiction of this court, with force and arms, feloniously, unlawfully, wilfully and maliciously did set fire to and burn a certain stable of the aforesaid A. B., there situate, with intent to destroy the same, to the evil example of all others in like case offending, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

CHAPTER IV.

ROBBERY.(j)

(410) General frame of indictment at common law.

(411) Robbery-the prisoner being armed with a dangerous weapon. Mass.
Rev. sts., ch. 125, § 15.

(412) Robbery-the prisoner being armed with a dangerous weapon, and
striking and wounding the person robbed. Rev. sts. of Mass., ch. 125.
(413) Robbery, not being armed. Rev. sts. of Mass., ch. 125, § 15.
(414) Attempting to extort money by threatening to accuse another of a crime.
Rev. sts. of Mass., ch. 125, § 17.

427. Per curiam: "The word 'maliciously' in the first count, may pass as an equivalent for the word 'wilfully;' but the words 'barrack, rick or stack of hay, grain or bark,' as much import a barrack of hay or grain, as they de a rick or stack of hay or grain. They were used elliptically in the context, to avoid repetition. The statute is an amplification of the act of 1767, under a mitigated punishment; and it is to be remarked, that it was not indictable on that act, though it is so now, to burn a barn 'unless it had hay or corn therein.' It is not credible, therefore, that the legislature did not formerly extend as much protection to a barn as they subsequently intended to extend to a barrack, which, in Pennsylvania, is an erection of upright posts supporting a sliding roof usually of thatch; for of all the buildings on a farm, it is the cheapest, and that which, independently of the property housed by it, offers the least incitement to malicious mischief. It is not generally, if at all, used by the tanner to cover his bark; but containing that material, its contents would be within the words of the statute, and the protection intended to be given by it.

"The second count is for feloniously burning a stable, which is undoubtedly a subject of the statutory offence, independent of its contents; but as it does not conclude against the form of the statute, and there is no such felony at the common law, there is no count in the indictment on which the judgment can be rested."-The form in the text is modified to meet the opinions of the court.

(j) See Wh. C. L. generally as follows:

A. STATUTES.

United States.

Massachusetts.

Robbery with larceny, the robber being armed, &c., and striking the person robbed, § 1678.

Robbery, not being armed, &c., § 1679.

Attempt to extort by threats, &c., § 1680.

New York.

Robbery in the first degree, § 1681.

Same in second degree, § 1682.

Punishment, § 1683.

Attempt to extort by threats, &c., § 1684.

(410) General frame of indictment at common law. (a)

That A. B. &c., in the highway there, in and upon E. F. there being, (b) feloniously did make an assault, and him the said E. F., in bodily fear(c) and danger of his life in the highway(d) aforesaid, then and there feloniously did put, and one gold watch of the value of (insert goods taken as in larceny), of the goods and chattels of the said E. F. from the person, and against the will(e) of the said E. F. in the highway aforesaid, then and there feloniously and violently did seize, take and carry away, against, &c. (Conclude as in book 1, chap. 3.)

(411) Robbery, the prisoner being armed with a dangerous weapon. Mass. Rev. Sts. ch. 125, § 13.(ƒ)

That C. D., late of, etc., on the first day of June in the year of our Lord with force and arms, at B. aforesaid, in the county aforesaid, in and upon one J. N. feloniously did make an assault, and the said J. N. in bodily fear and danger of his life, then and there feloniously did put, and one gold watch, of the value of two hundred dollars, of the goods and chattels of the said J. N., from the person and against the will of the said J. N., then and there feloniously, and by force and violence, did rob, steal, take and carry away, the said C. D. being then and there armed with a dangerous weapon, to wit, a pistol, with intent, if then and there resisted by the said J. N. then and there to kill; against, &c. (Conclude as in book 1, chap. 3.)

(412) Robbery, the prisoner being armed with a dangerous weapon, and striking and wounding the person robbed. On the latter clause of the thirteenth section of the Rev. Sts. of Mass. ch. 125.(g)

That A. B., 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. aforesaid, in the county

B. ROBBERY AT COMMON LAW, § 1695.

(a) For this form, see Stark. C. P. 441.

(b) It is essential to aver, that the assault be laid as feloniously made; Wh. C. L. 101; Stark. C. P. 99. See Wh. C. L. § 400.

(c) It is necessary to aver, that the property was taken with violence from the person, and against the will of the party; Fost. 128; 1 Hale 534; Leach 229. "The allegation that the party was put in fear is of modern introduction; and in Donally's case, Leach 229, it was observed by the judges, that no technical description was necessary, provided it appeared on the whole, that the offence had been committed with violence, and against the will of the party. And in Smith's case, East P. C. 783, the prisoner was charged with assaulting the prosecutor with force and arms, and putting him in corporal fear, and taking a sum of money from his person, against his will; it was objected that the taking ought to have been alleged to have been done violently, but all the judges agreed, that a robbery was sufficiently described, and that Lord Hale (1 Hale 534), was inaccurate in his expression;" Stark. C. P. 442.

(d) See as to this, Wh. C. L. § 1695-1704.

(e) This is necessary, Wh. C. L. § 402.

(f) Th. & H. Prec. 461. Commonwealth v. Martin, 17 Mass. (Rand's ed.) 359. (9) Th. & H. Prec. 462.

aforesaid, in and upon one J. N., feloniously did make an assault, and the said J. N. in bodily fear and danger of his life, then and there feloniously did put, and sundry pieces of silver coin, current within this commonwealth by the laws and usages thereof, amounting together to the sum of twelve dollars, and of the value of twelve dollars, of the moneys and property of the said J. N. from the person and against the will of the said J. N., then and there feloniously and by force and violence did rob, steal, take, and carry away; and that the said A. B. was then and there armed with a certain dangerous weapon, to wit, a pistol, and being then and there so armed as aforesaid, the said A. B., with the dangerous weapon aforesaid, the said J. N. in and upon the face and head of the said J. N., then and there feloniously did strike and wound; against, &c., and contrary, &c.

(413) Robbery, not being armed. Rev. Sts. of Mass. ch. 125, § 15.(h) That C. D., late of, etc., laborer, on the first day of June in the year of our Lord with force and arms, at B. aforesaid, in the county aforesaid, in and upon one J. N. feloniously did make an assault, and the said J. N. then. and there feloniously did put in fear, and one gold watch, of the value of one hundred dollars, of goods and chattels of the said J. N., from the person and against the will of the said J. N. then and there feloniously, and by force and violence, did rob, steal, take, and carry away; against, &c., and contrary, &c.

(414) Attempting to extort money by threatening to accuse another of a crime. Rev. Sts. of Mass. ch. 125, § 17.(2)

That C. D., late of, etc., on the first day of June in the year of our Lord with force and arms, at B. aforesaid, in the county aforesaid, unlawfully and maliciously did threaten one J. N., in a certain conversation which the said C. D. then and there had of and concerning the said J. N., to accuse the said J. N. of having (here describe the accusation), with the intent by so doing thereby then and there to extort from the said J. N. a certain sum of money, to wit, the sum of five hundred dollars; against, &c., and contrary, &c.

CHAPTER V.

LARCENY. (j)

(415) General frame of indictment at common law.
(416) Stealing the property of different persons.
(417) Larceny at a navy yard of the United States.

(418) Larceny on the high seas.

(419) Larceny on the high seas. Another form.

(h) Th. & H. Prec. 463, where reference is made to Commonwealth v. Humphries,

7 Mass. (Rand's ed.) 242; Commonwealth v. Clifford, 8 Cushing 215, 217.

(i) Th. & H. Prec. 463.

(j) For this offence generally, see Wh. Cr. L. as follows:

A. STATUTES.

United States.

Larceny in exclusive jurisdiction of U. S., or on high seas, § 1705.