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for the said county, that yesterday in the night the dwelling-house of

him the said A. I. at aforesaid, in the county aforesaid, was feloniously and burglariously broken open, and one silver tankard

of the value of 5l. of the goods and chattels of him the said A. I. feloniously and burglariously stolen, taken, and carried away from thence ; and that he hath just cause to suspect and doth suspect that A. 0. late of

in the county of - -, labourer, the said felony and burglary did commit: These are therefore, in his said majesty's name, to command you, that immediately upon sight hereof you do apprehend the said A. O., and bring him before me to answer the premises, and to be further dealt withal according to law. Herein fail' you not. Given under my hand and seal the

• day of

in the year

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Indictment for Burglary.
County of} THE jurors for our lord the king upon their oaths

present, that A.O., late of the parish of in the county of labourer, on the day of

in the year of the reign of about the "hour of one in the night of the same day, with force and arms, at the parish aforesaid, in the county of - the dwelling-house of A. I. there situate, feloniously and burglariously did break and enter, with intent the goods and challels of the said A. I. in the said dwellinghouse then and there being then and there feloniously and burglariously to steal, take, and carry away, and ihen and there with force and arms one silver tankard of the value of 51. of the goods and chattels of the said A. I. in the same dwelling-house then and there being found, then and there feloniously did steal, take, and carry, away; against the peace of our said lord the king, his crown and dignity.

Or, That I. S. on such a day, in the night of the same day, with force and arms the dwelling-house of A. B. feloniously and burglariously broke and entered, and then and there such and such things of the goods and chattels of the said A. B. in the said house then being, feloniously and burglariously did steal, take, and carry away.

Burning.
I. Punishable at Common Law.
II. Punishable by Statute.
[22 G. 2. c. 33.-12 G.3. c. 24.- 7 & 8 G. 4. c. 30.]

I. Punishable at Common Law. Houses, burn- MALICIOUSLY and voluntarily burning the house of another ing at the com

by night or by day is felony at the common law. 1 Haw. c. 39. Maliciously and voluntarily.) For if it be done by mischance

or negligence, it is no felony. 3 Inst. 67. In doing an As, if an unqualified person happen to set fire to the thatch of a

house; or even if a man were shooting at the poultry of another, by which means the house is fired, that is, provided he did not mean to steal the poultry, but merely to commit a trespass ;

mon law.

unlawful act.

for

otherwise, the first intent being felonious, the party must abide all the consequences. 2 East's P. C. 1019.

If a man, maliciously intending only to burn one person's house, happen thereby to burn the house of another, it is certain that he may be indicted as having maliciously burned the house of that other; for where a felonious design against one man misseth its

Felonious aim, and takes effect upon another, it shall have the like construc- intent. tion as if it had been levied against him who suffers by it. 1 Haw. C. 39. $5. I Hale, 569.

Burning.] Neither a bare intention to burn a house, nor even Bare attempt an actual attempt to do it by putting fire to part of a house, will not sufficient. amount to felony, if no part of it be burned: but if any part of the house be burned, the offender is guilty of felony, notwithstanding the fire afterwards be put out, or go out of itself. Haw. c. 39. 4. 2 East's P. C. 1020.

The house.] This extendeth not only to the very dwelling- Outhouses house, but to all outhouses that are parcel thereof, though not belonging to contiguous to it, nor under the same roof. i Hale, 567.

house. But if the barn or outhouse be not parcel of a dwelling-house, Barn with corn. it is not felony unless the barn have hay or corn in it; and then, though it be no parcel of a dwelling-house, it is felony. 3 Inst. 67. 2 Russ. 487.

Of another.) But a person seised in fee, or but possessed for Must be tae years of a house standing by itself at a distance from all others, house of an

other, cannot commit felony in burning the same. So a man so seised or possessed of a house in a town, who burned his own with an intent to burn his neighbour's, but in the event burned his own only, was not at common law guilty of felony; it was however certainly an offence highly punishable, in regard of the malice thereof, and the great danger to the public which attended it; and the offender was liable to be severely fined, and imprisoned during the king's pleasure, and set on the pillory and bound to his good behaviour. 1 Haw. c. 39. $ 3.

If a landlord or reversioner sets fire to his own house, of which Landlord or another is in possession, under a lease from himself or from those reversioner whose estate he hath, it shall be accounted arson; for during the burning house

in occupation lease the property of the house is in the tenant. 2 Russ. 488.

of a tenant. So, where a widow entitled to dower, but which had not been

Widow entitled assigned to her, burned a house which she had let to a tenant, for to dower, but the benefit of her husband's eldest son, it was arson. 2 East, P. C. before assign1023. 2 Russ. 488.

If a person wilfully and maliciously sets fire to his own house, and thereby burns the house of another which is contiguous, it is arson. See Isaac's case, 2 East, P. C. 1031.

Where a parish pauper was put into a house by the parish offi- Parish house cers, and had the sole occupation of it by himself and family, pay, occupied by ing no rent, it was held that it could not be considered as his pauper. house, and that, having burned it, he was guilty of arson. 2 Russ. 488.

ment.

II. Punishable by Statute. A great variety of statutes have at different times been enacted for the punishment of the crime of burning, and setting fire to houses and other buildings, &c.; but the greater part of these have

her husband's house not

been repealed, and the description and punishment of the offence

have been provided for by the following enactments. Setting fire to

By 7 & 8 G.4. c. 30. § 2., if any person shall unlawfully and church, house, maliciously set fire to any church or chapel, or to any chapel for stable, &c. &c.

the religious worship of persons dissenting from the united church of England and Ireland, duly registered or recorded, or shall unlawfully and maliciously set fire to any house, stable, coach-house, out-house, warehouse, office, shop, mill, malt-house, hop-oast, barn, or granary, or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them respectively shall then be in the possession of the offender, or in the possession of any other person, with intent thereby to injure or defraud any person, every such offender shall be guilty of felony, and, being convicted thereof, shall suffer death

as a felon. Wife burning Where a woman, living apart from her husband, maliciously set

fire to his house, it was held, on cause reserved, not to fall within

this statute; it being essential, to constitute the offence, that there within stat., though living

should be an intent to injure or defraud some third person not separate.

identified with herself. E. T. 1828, R. v. Elizabeth March,

R. & M. 182. Coal-mine. By $ 5., if any person shall unlawfully and maliciously set fire

to any mine of coal or cannel coal, every such offender shall be guilty of felony, and, being convicted thereof, shall suffer death

as a felon. Ship or vessel.

By $ 9., if any person shall unlawfully and maliciously set fire to, or in anywise destroy any ship or vessel, whether the same be complete or in an unfinished state, or shall unlawfully and maliciously set fire to, cast away, or in anywise destroy any ship or vessel, with intent thereby to prejudice any owner or part owner of such ship or vessel, or of any goods on board the same, or any person that hath underwritten or shall underwrite any policy of insurance upon such ship or vessel, or on the freight thereof, or upon any goods on board the same, every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as

a felon. Stack of corn,

By $ 17., if any person shall unlawfully and maliciously set fire grain, &c.

to any stack of corn, grain, pulse, straw, bay, or wood, every such offender shall be guilty of felony, and, being convicted thereof,

shall suffer death as a felon ; and if any person shall unlawfully Crop of corn, and maliciously set fire to any crop of corn, grain, or pulse, grain, &c. whether standing or cut down, or to any part of a wood, coppice, Wood, coppice, or plantation of trees, or to any heath, gorse, furze, or fern, where&c.

soever the same may be growing, every such offender shall be Heath, gorse,

guilty of felony, and, being convicted thereof, shall be liable, at &c.

the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years; and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in

addition to such imprisonment. The malice need By $ 25., punishments imposed by this act on persons maliciously

committing any offence, are equally to apply and be in force the owner of the whether the offence shall be committed from malice conceived property in. jured.

against the owner of the property in respect of which it shall be committed, or otherwise.

By 12 G. 3. c. 24. 1. it is made a capital offence if any person Burning or shall, within this realm, or in any of the islands, countries, &c. destruction of thereto belonging, wilfully and maliciously set on fire, or burn, or ships, arsenals, otherwise destroy, or cause to be set on fire, &c., or aid, procure,

stores, &c. abet, &c. any of his majesty's ships, whether on float, or building, or repairing, or any of his majesty's arsenals, magazines, dock-yards, &c., or any of the buildings thereto belonging, or any timber, &c. there placed for ship-building, or any naval, military, or victualling stores, or the places where they are deposited: and by $ 2. any person charged with committing any of the abovenamed offences out of the realm, may be tried either in any county in England, or in the island or place where the offence was committed, as the king may deem most expedient.

It may be convenient to insert some of the cases decided on statutes now repealed, where the terms used in the enactments resembled those of the statutes which are now in force.

By 9 G.1. c. 22. (the Black Act) § 1., it was made a capital Black Act felony to set fire to any house, barn, or outhouse, or to any hovel, (now repealed). cock, mow, or stack of corn, straw, hay, or wood.

On this statute it has been held that a common gaol was a house, A common gaol within the meaning of it. The entrance to the prison was through within the act. the dwelling-house of the gaoler, and the prisoners were sometimes allowed to lie in it. All the judges held that the dwelling-house was to be considered as part of the prison, and the whole prison was the house of the corporation to whom it belonged. One set of the counts laid it to be the house of the corporation, another of the gaoler, and a third of the person whom the gaoler suffered to live in the dwelling-house. Donovan's case, Lanc. 1770, 2 Bl. Rep. 682. 2 East's P.C, 1020.

It has been held that this statute did not alter the nature of the common law crime, or create any new offence, and therefore that under the words “set fire to," the putting fire into, or towards a house, however maliciously, does not amount to arson, if in fact no part of it be burned.

Sarah Taylor was indicted for setting fire to an outhouse, com- Attempt to burn monly called a paper-mill. It appeared that she had set fire to a a paper-mill. large quantity of paper which was drying in a loft annexed and belonging to the mill; but no part of the mill itself was consumed; and therefore the judges thought the case not within the statute on that ground; though another doubt was started, whether a mill were an outhouse within the meaning of the act. Sarah Taylor's case, 2 East's P. C. 1020. Leach, 49.

Where the prisoner stuck a lighted candle in the thatched roof of a house, with the intention of burning it down, but being observed by a neighbour, the burning candle, and the straw immediately communicating with it, were pulled out of the roof, and the fire was thus stopped, but the straw pulled out was proved to have been black and singed; the prisoner was convicted, under 7 & 8 G.4. c. 30. s 2., and no objection was raised that the house had not been set fire to: but the conviction was held wrong on another ground. E. T. 1828, R. v. Elizabeth March, R. & M. 182.

North was indicted for feloniously, wilfully, and maliciously Outhouse. setting fire to a certain outhouse of J. Taylor, at Knaresborough, against the form of the statute (9 G. 1. c. 22.). It appeared that the prisoner had set fire to and burned part of a building of

116.

Outhouse.

the prosecutor, situated in a yard of his at the back of his dwelling-house, which was in the street of the town of Knaresborough. The building was four or five yards distant from the dwelling-house, but not joined to it. The yard was enclosed on all sides, in one part by the dwelling-house, in another part by a wall, and in a third part by a railing, which separated it from a field, and in the remaining part by a hedge. The buildings set fire to and in part burned, consisted of a stable and a chamber over it, which was used by the prosecutor as a shop for keeping and dressing flax. It was objected on behalf of the prisoner that this building was not an outhouse within the stat. 9 G. 1. c. 22., as that must be understood to mean outhouses, which in contemplation of law were not part of the dwelling; which it was insisted this was, and that the indictment should have been for arson at

common law. The jury found the prisoner guilty, and the point See as to out- was reserved. In November 1795, all the judges (except Hotham house, post, 115, B., who was absent) agreed that the verdict was right. They said,

that though for some purposes this might be part of the dwellinghouse, yet still in fact it was an outhouse; and that the stat. 9 G. 1. did not alter the nature of the crime, or create any new offence, but only excluded the principal from clergy more clearly than he was before. North's case, York Sum. Ass. 1795, 2 East's P. C. 1021. ; see Elsmore v. St. Briavels, 8 B. & C. 461. tit.

hundred. Burning parcel In the case of R. v. Judd, 2 T. R. 255., who was committed for of unthrashed wilfully and maliciously setting fire to a parcel of unthrashed wheat,

the court were of opinion, that as the statute had only made it felony to set fire to a cock, mow, or stack of corn, the warrant of commitment did not charge the defendant with a felony; and he

was therefore admitted to bail. 22 G. 2. c. 33. By the articles of the navy, stat. 22 G. 2. c. 33., every person

who shall unlawfully burn or set fire to any magazine or store of Setting fire to

powder, or ship, boat, ketch, hoy, or vessel, or tackle or furniture magazine, &c.

thereunto belonging, not appertaining to an enemy or rebel, shall

be punished with death by the sentence of a court-martial. Burning a millo An action was brought against the hundred of Shrewsbury for house not parcel damages sustained by the wilful setting on fire “ of a certain outof a dwelling- house, and certain mill wheels, works, and machinery in the same.' house is not felony within

The building was a mill-house, and though it was under the same roof with a cottage, where one of the plaintiffs formerly slept, there was no interior communication between them. There was a verdict for the plaintiff, subject to a case, and upon argument in K. B., per Lord Ellenborough C. J., though in an indictment for arson, it need not state the offence to have been committed against the mansion-house, yet in evidence the building burned must be proved to have been in some way connected with the mansion-house, so as to show it parcel thereof. The 9 G. 3. c. 29. (a), was passed to extend to mills, parcel or not of the dwelling-house; but it gives no remedy against the hundred. The action then must bring the case within stat. 9 G. 1. c. 22. (a), the words of which are house, barn, or outhouse: that is, such outhouse of which arson might be committed at common law. These premises are not of any of these descriptions. Hiles v. Hundred of Shrewsbury, 3 East, 457.

corn.

art. 25.

9 G. 3. c. 29.

(a) Both 9 G. 3. c. 29. and 9 G. 1. c. 22. are now repealed.

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