§ 465. List of crimes.-The two crimes against the habitation are arson and burglary.

§ 466. Definition.-Arson is the wilful and malicious burning of the dwelling-house of another.

§ 467. Essentials.-To constitute the crime of arson, at common law, the following elements are essential: (1) The building must be a dwelling-house. (2) It must be occupied by some other person. (3) There must be a charring of the wood. (4) The act must be done wilfully and maliciously.

§ 468. Character of the building.-At common law, the building must be a dwelling-house, or an outhouse within the curtilage used in connection therewith. A barn or stable, which is within the curtilage, is within the definition,' but a building which is separated from the dwelling-house by a highway is not. It is not essential, however, that the outhouse adjoin the dwelling-house. Nor is it essential that it be enclosed with the dwelling-house by a fence.*

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An essential element of arson is occupancy of the house. A building designed for a dwelling-house and constructed in the usual manner, but which has not been occupied as such, does not come within the definition. It is to be observed, however, that temporary absence of the occupant is immaterial. It is not essential that the whole of the building be occupied for residence purposes. Thus, part of it may be used as a store, or as a jail.8

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§ 469. Ownership.-According to the definition the building must be the dwelling-house of another. Ownership, however, in this connection is used in the sense of occupancy. It is not essential that the occupant be the legal owner. He may be only a tenant. And, at common law, since arson is a crime against the home rather than against the property as such, a lessee can not be guilty of arson in

1 People v. Aplin, 86 Mich. 393, 49 N. W. 148; Commonwealth v. Barney, 10 Cush. (Mass.) 480; Washington v. State, 82 Ala. 31, 2 So. 356. See also 101 Am. St. 22n, 71 Am. St. 66n.

2 Luke v. State, 49 Ala. 30, 20 Am. Rep. 269; Curkendall v. People, 36 Mich. 309.

3 Reg. v. James, 1 Car. & K. 303; Mary v. State, 24 Ark. 44, 81 Am. Dec. 60.

4 Pond v. People, 8 Mich. 150. 5 State v. McGowan, 20 Conn. 245, 52 Am. Dec. 336, Derby's

Cases 549; Davis v. State, 153 Ala. 48, 44 So. 1018, 127 Am. St. 17, 15 Ann. Cas. 547.

6 Mecks v. State, 102 Ga. 572, 27 S. E. 679; State v. Meerchouse, 34 Mo. 344, 86 Am. Dec. 109.

7 People v. Orcutt, 1 Park. Cr. R. (N. Y.) 252; Spears v. State, 92 Miss. 613, 46 So. 166, 16 L. R. A. (N. S.) 285.

8 Luke v. State, 49 Ala. 30, 20 Am. Rep. 269.

8a State v. Hanna, 131 Ark. 129, 198 S. W. 881.

burning the house he lives in, whereas the landlord can be.10 However, the statutes have extended the crime of arson to include offenses against property as well as against the habitation and by statute in most of the states a person can be guilty of arson in burning his own dwelling-house.11 At common law, a man can not commit arson in burning his wife's house which they jointly occupy. Nor can the wife commit arson in burning her husband's house which they jointly occupy. In the former case, the house, in legal contemplation, as regards the crime of arson, is the dwelling house of the husband.12 And in the latter case the wife's legal identity is blended with that of her husband.13 But under some statutes one spouse is liable for burning the house of the other.14

§ 470. The burning.-To constitute arson there must be an actual burning of at least some part of the house. It is not essential, however, that any part of it be wholly consumed.15 Nor is it essential that the wood be in a blaze, for some species of wood will burn and entirely consume without blazing at all.16 On the other hand, some part of it must be at least charred. 17

9 State v. Lyon, 12 Conn. 487; 2 Russ. on Crimes 550; State v. Martin, 87 Nebr. 529, 127 N. W. 896, Ann. Cas. 1912A, 1125n.

102 East P. C. 1023, 1024.

11 State v. Hurd, 51 N. H. 176; Shepherd v. People, 19 N. Y. 537. See also note to Ann. Cas. 1912 B, 1126; Lipschitz v. People, 25 Colo. 261, 53 Pac. 1111, Derby's Cases 551; People v. Abrams, 174 Cal. 172, 162 Pac. 395.

12 Snyder v. People, 26 Mich. 106, 72 Am. Rep. 202; State v. Young, 139 Ala. 136, 36 So. 19, 101

Am. St. 21; Kopcyznski v. State, 137 Wis. 358, 118 N. W. 863, 16 Ann. Cas. 865. See also State v. Shaw, 79 Kans. 396, 100 Pac. 78, 21 L. R. A. (N. S.) 27, 131 Am. St. 298.

13 Snyder v. People, 26 Mich. 106, 12 Am. Rep. 302.

14 Williams v. State, 177 Ala. 34, 58 So. 921, Ann. as. 1915 A, 584.

15 Woolsey v. State, 30 Tex. App. 346, 17 S. W. 546.

16 Reg. v. Parker, 9 Car. & P. 45. 17 Woolsey v. State, 30 Tex. App. 346, 17 S. W. 546.

Where personal property in a dwelling-house is set on fire and wholly consumed, with intent to burn the house, the offense is not arson, even although the wood of the house is scorched black, provided no part of it is charred.18

§ 471. The intent.-The act of setting fire to the house must be done with wilful and malicious intent.19 It is not essential, however, that it be done with the specific intent to consume the building. The intent may be to accomplish some other offense; and where the firing is done with the intention to commit any felony, it is arson.20 But whether it is arson or not where the burning is done with the intention of committing a misdemeanor the authorities are in conflict. Some authorities say that in such case the doctrine of constructive intent does not apply.21

It is observed, however, that the motive is immaterial. The criminal intent is inferred from the act.22 Suppose, for example, that the accused is indicted for arson, and the proof shows that he attempted to break jail by burning a hole through the jail floor. At common law, breaking jail is a felony or a misdemeanor, according as the cause of imprisonment belongs to the one grade or the other.23 Why should the cause of his imprisonment affect the question of his guilt on the indictment for arson? The answer is, it should. not. The causeless setting fire to a house, by a person of responsible mind, is arson, because the necessary intention is presumed from the act. The same act, done with the

18 Reg. v. Parker, 9 Car. & P. 45. 19 State v. Pienick, 46 Wash. 522, 90 Pac. 645, 11 L. R. A. (N. S.) 987, 13 Ann. Cas. 800; Spears v. State, 92 Miss. 613, 46 So. 166, 16 L. R. A. (N. S.) 285; Crow v. State, 136 Tenn. 333, 189 S. W. 687; Carr v. State (Ala. App.), 76 So. 413; State v. Sieff, 54 Mont. 165, 168 Pas.

20 Luke v. State, 49 Ala. 30, 20 Am. Rep. 269.

211 Bish. New Crim. L. (8th ed.), Bish. New Crim. L. (8th ed.), § 14; Clark's Crim. L. 229.

22 Clark's Crim. L. 230.

23 2 Bish. New Crim. L. (8th ed.)

§ 155.

intention of committing a crime, whether felony or misdemeanor, must also be held to be arson, because the very recklessness of the deed supplies the wilful intention. The guilt or innocence of the defendant is not dependent upon whether he was in commission of a different felony or not. If he intentionally and designedly sets fire to the jail, in order to accomplish an unlawful purpose, the burning is wilfully done.24 This is in accord with the better view, as well as the weight of authority.

§ 472. Statutory changes.-The common law relative to arson has been materially changed by statutes. The general effect of these statutes is to enlarge the scope of the crime. They differ a good deal, however, in the various states. Some make it arson to burn various kinds of buildings other than dwelling-houses; and some make it arson to burn cars, boats, or even hay, lumber, etc., while others nake it arson, or criminally punishable, for the owner of house which he occupies to burn it with the fraudulent intent to obtain the insurance thereon.25

At common law, as well as by statute, arson is a felony.

§ 473. Proof of corpus delicti.-It is the modern doctrine that before there can be a lawful conviction of arson, there must be satisfactory evidence that the burning was effected by a criminal agency.28

24 Luke v. State, 49 Ala. 30, 20 Am. Rep. 269.

25 Heard v. State, 81 Ala. 55, 1 So. 640, Derby's Cases 553. See also State v. Greer, 243 Mo. 599, 147 S. W. 968, Ann. Cas. 1913C,

1163n; Allen v. Commonwealth, 176 Ky. 475, 196 S. W. 160.

26 People v. Hannibal, 259 Ill. 512, 102 N. E. 1042, Ann. Cas. 1914C, 329n.