fact, it is necessary to show that the prisoner instigated and incited the principal to commit the crime. With respect to the degree of incitement, and the force of the persuasion used, no rule seems to have been laid down. If it was of a nature tending to induce the commission of the crime, and was so intended, it will be presumed to have led to that result, if the crime is proved. It does not seem necessary to prove, substantially, that the persuasion employed actually produced any effect, in order to maintain the indictment; nor is it a good defence, that the crime would have been committed had no persuasion or incitement been employed.1 The cases where one crime was advised, and another was perpetrated upon that advice, are all governed by one and the same principle. If the crime, committed by the principal felon, was committed under the influence of the flagitious advice of the other party, and the event, though possibly falling out beyond the original intention of the latter, was, nevertheless, in the ordinary course of things a probable consequence of that felony, he is guilty of being accessory to the crime actually committed. But if the principal, following the suggestions of his own heart, wilfully and knowingly committed a felony of another kind, on a different subject, he alone is guilty.2 1 2 Stark. Ev. 8. And see Commonwealth v. Bowen, 13 Mass. 359. 2 Foster, 370, 371, 372. ARSON. § 51. THE indictment, at common law, for this crime, charges that the prisoner, "with force and arms, at, &c., feloniously, wilfully, and maliciously did set fire to and burn a certain dwelling-house1 of one J. S., there situate," &c. To support the indictment, therefore, four things must be proved; namely, first, that the offence was committed upon a dwelling-house; secondly, that it was the house of the person named as the owner; thirdly, that it was burnt; and, fourthly, that this was done with a felonious intent. § 52. The term, dwelling-house, in the common law, comprehends not only the very mansion-house, but all out-houses which are parcel thereof, though not contiguous to it, nor under the same roof, such as the barn, stable, cow-house, 1 It is not necessary to allege it to be a dwelling-house; the word "house" alone is sufficient. 3 Inst. 67; 1 Hale, P. C. 567; Commonwealth v. Posey, 4 Call, 109; 2 East, P. C. 1033. 2 The burning of other property, of various descriptions, is made punishable by statutes of the different American States, the consideration of which does not fall within the plan of this Treatise. 3 See supra, § 10; Commonwealth v. Wade, 17 Pick. 395. The charge for this offence, at common law, is in the following form: The Jurors, &c. on their oath present, that A. B., of, &c. at, &c. on, &c. the dwelling-house of one C. D., there situate, feloniously, wilfully, and maliciously did set fire to, and the same house then and there, by such firing as aforesaid, feloniously, wilfully, and maliciously did burn and consume, against the peace of the (State or Commonwealth) aforesaid. The words wilfully (or voluntarily) and maliciously, as well as feloniously, are indispensable in charging this crime. 2 East, P. C. 1033; 1 Hawk. P. C. ch. 39, § 5; Rex v. Reader, 4 C. & P. 245. sheep-house, dairy-house, mill-house, and the like;1 so that if the evidence be of the burning of one of these, the averment is proved. But if the barn be no part of the mansion-house, the burning is said not to be felony, unless it have corn or hay in it. If the out-house be within the same curtilage or common fence, it is taken to be parcel of the mansion-house; but no distant barn or other building is under the same privilege; nor is any out-house, however near, and though it be occupied by the owner of the mansion-house, if it be not parcel of the messuage, and so found to be. No common inclosure is necessary, if the building be adjoining the mansionhouse, and occupied as parcel thereof.1 § 53. The burning of one's own house, the owner being also the occupant, does not amount to this crime; though it is a great misdemeanor, if it be so near other houses as to create danger to them.5 But if the house be insured, and the owner purposely set it on fire with intent to defraud the underwriters, and thereby the adjoining house of another person be burnt, the burning of this latter house will be deemed felonious.6 54. As to the ownership of the house, it must be laid and proved to be the house of some other person than the prisoner himself; but it is not necessary that the reversionary interest 13 Inst. 67; 1 Hale, P. C. 567; 4 Bl. Comm. 221; 2 East, P. C. 1020; 2 Russ. on Crim. 548. 2 Ibid.; 4 Com. Dig. 471, tit. Justices, P. 1. 3 Ibid.; 2 East, P. C. 493, 1020; The State v. Stewart, 6 Conn. 47; Rex v. Haughton, 5 C. & P. 555. 4 2 East, P. C. 493, 494. A common goal is a dwelling-house, if the keeper's house adjoin it, and the entrance to the prison is through the house of the keeper; and it may be averred to be the house of the county or corporation to which it belongs. Donevan's case, 2 W. Bl. 682; 2 East, P. C. 1020 ; 1 Leach, Cr. L. 81; The People v. Cotteral, 18 Johns. 115. 5 1 Hale, P. C. 567, 568; 4 Bl. Comm. 221; 2 East, P. C. 1027, 1030; 1 Deacon, Crim. L. 56; Bloss v. Tobey, 2 Pick. 325. 6 Probert's case, 2 East, P. C. 1030, 1031. be in the occupant; it is the right of present possession, suo jure, at the time of the offence, which constitutes the ownership required by the common law. Therefore this crime may be committed by one entitled to dower in the house, which has not been assigned; or, by the reversioner, who maliciously burns the house in the possession of his tenant. On the other hand, if the lessee, or the mortgagor burns the house in his own possession, it is not arson. But where a parish pauper maliciously burned the house in which he had been placed rent-free by the overseers of the poor, who were the lessees, he was adjudged guilty of arson; for he had no interest in the house, but was merely a servant, by whom the overseers had the possession.5 § 55. There must also be proof of an actual burning of the house. It is not necessary that the entire building be destroyed; it is sufficient that fire be set to it, and that some part of it, however small, be decomposed by the fire, though the fire be extinguished or go out of itself. But an attempt to set fire to the house, by putting fire into it, if it do not take, and no part of the house be burned, though the combustibles themselves are consumed, is not arson, at the common law.6 1 2 East, P. C. 1022, 1025; 2 Russ. on Crimes, 564, 565; The People v. Van Blarcum, 2 Johns. 105. 2 Rex v. Harris, Foster, 113-115. 3 Ibid.; 2 East, P. C. 1024, 1025. 4 Rex v. Holmes, Cro. Car. 376; W. Jones, 351; Rex v. Pedley, 1 Leach, Cr. L. 242; Rex v. Scholfield, Cald. 397; 2 East, P. C. 1023, 1025 - 1028; 2 Russ. on Crimes, 550, 551. 5 Rex v. Gowen, 2 East, P. C. 1027; Rex v. Rickman, Id. 1034. 6 3 Inst. 66; 4 Bl. Comm. 222; 1 Hale, P. C. 568; 2 East, P. C. 1020; Rex v. Taylor, 1 Leach, Cr. L. 58; Commonwealth v. Van Schaack, 16 Mass. 105; The People v. Butler, 16 Johns. 203; 1 Hawk. P. C. c. 39, § 17. Where the witness testified that "the floor near the hearth had been scorched; it was charred in a trifling way; it had been at a red heat, but not in a blaze"; this was thought, by Parke, B., to be sufficient proof of arson. But the witness, on further examination, having stated that he had not examined the floor, to ascertain how deeply the charring went in, neither could he at all § 56. There must also be proof of a felonious intent. This allegation is not supported by any evidence of mere negligence or mischance; nor by proof of an intent to do some other unlawful act, without malice, such as if one, in shooting with a gun, in violation of the game laws, or in shooting at the poultry of another, should happen to set fire to the thatch of the house,2 or the like. But if he intended to steal the poultry, the intent being felonious, he is liable criminally for all the consequences. It is not necessary, however, that the burning should correspond with the precise intent of the party; for if, intending to burn the house of A., the fire should, even against his will, burn the house of B. and not that of A., it is felony. It is a general rule of penal law, that where a felonious design against one man misses its aim, and takes effect upon another, it shall have the like construction as if it had been directed against him who suffers by it.5 Therefore it has been said, that if one command another to burn the house of A., and by mistake or accident the servant burns the house of B., the principal is guilty of felony for this latter burning. And if one, by wilfully setting fire to his own house, burn the house of his neighbor, which was so near that the burning of it would be the natural and probable consequence of burning his own house, it is felony.7 form a judgment as to how long it had been done, the Court, (per Bosanquet, J.) told the Jury that this evidence was much too slight, and that they ought to acquit. Regina v. Parker, 9 C. & P. 45. And see The State v. Sandy, 3 Ired. 570. Where fire was placed in a roof composed of wood and straw, producing smoke and burnt ashes in the straw, this was held a setting on fire, though there was no appearance of fire itself. Rex v. Stallion, 1 Ry. & M. 398. 13 Inst. 67; 4 Bl. Comm. 222. 2 1 Hale, P. C. 569. And see The State v. Mitchell, 5 Ired. 350. 3 2 East, P. C. 1019; 2 Russ. on Crimes, 549. 4 Ibid.; 1 Hawk. P. C. ch. 39, § 19. 5 See supra, § 17, 18. 6 Lamb. Eirenar. b. 2, ch. 7, fol. 282; Plowd. 475; 2 East, P. C. 1019. 72 East, P. C. 1031; Rex v. Isaac, Ibid.; Rex v. Probert, Id. 1030, per Grose, J. |