22 Ass. 95. B. Cor. 93. S. P. C. 30. Dalt. c. 151. (a) But see ante, p. 133. Dyer, 99. 1 Hale, 562. Rex v. Bingley, Sect. 35. From what has been said it clearly appears, that no burglary can be committed by breaking into any ground inclosed, or booth, or tent, &c. (a); for there seems to be no colour, from any authority ancient or modern, to make any offence burglary that is not done either against some house, or church, or the walls or gates of some town. As to THE SIXTH POINT, viz. What degree of guilt is required in the principal intention of the offender. that Sect. 36. It seems clear, that there can be no burglary but where the indictment both expressly alleges, and the verdict also finds, an intention to commit some felony; for if it appear the offender only meant to commit a trespass, as to beat the party, &c. he is not guilty of felony. Sect. 37. And therefore where a servant embezzled money intrusted to his care, ten guineas of which he deposited in his 3 Jac. 2. M. S. trunk, and quitted his master's service, but afterwards returned, broke and entered the house in the night, and took away the ten guineas; it was adjudged no burglary, because it did not appear that he entered to commit a felony, but a trespass only. (a) Rex v. 482. in point. Sect. 38. However, it seems much the better opinion, that an intention to commit a rape, (a) or such other crime which is made Gray, Strange, felony by statute, and was a trespass only at common law, will make a man guilty of burglary, as much as if such offence were a felony at common law; because wherever a statute makes any offence felony, it incidentally gives it all the properties of a felony at common law. (6) As to THE SEVENTH POINT, viz. In what manner burglary is deprived of the benefit of clergy. Sect. 39. By 18 Eliz. c. 7. " If any person or persons shall "commit or do any manner of felonious burglary, he or they "shall suffer death without benefit of clergy." + Sect. 40. By 3 and 4 Will. and Mary, c. 9. " All and every person or persons that shall counsel, hire, or command any person to commit any burglary, shall not have the benefit of his or their clergy." (6) Lord Hale states, that, to constitute burglary, the house must be broken and entered with intent to commit a felony at common law, and not a fact made felony by statute. And he therefore says, it has been doubted whether breaking a house in the night, with intent to commit rape, were burglary or not: Crompton thinking it would not, because made felony by statute Westm. 2. c. 34. ; and Dalton (Ch. 151. s. 5. Stamf. 81.) thinking it would, because rape was originally felony at common law, though reduced to misdemeanor by statute. It seems, however, now, as Hawkins observes, to be the better opinion, that if the house be broke, and with intent to commit any felony, whether so by common law or made so by statute, the offence is burglary. (2 E. P. C. 511. Black. Com. v. 4. c. 16.) As In the case of Rex v. Knight and Roffey, who broke into a dwelling-house in the night with intent to rescue some smuggled goods, which were laid in the indictment as the property of the officer, and stated the intent to be to steal those goods, the jury found, that the prisoners broke into the house with intent to take the goods on behalf of one Smith, from whom they had been seized. The judge held, that this indictment was not well supported, there being no intention to steal; but if the indictment had been for breaking, &c. the house with intent feloniously to rescue goods seized, &c. that being made felony by stat, 19 Geo. 2. c. 34. the Chief Baron and some other of the judges held, that it would have been burglary. (2 East, P. C. 510.) As to THE EIGHTH POINT, viz. Of the statutes which have been passed with a view to prevent this offence. + Sect. 41. By 23 Hen. 8. c. 5. "If any person or persons "be indicted for the death of any evil-disposed person or per"sons attempting burglariously to break mansion-houses in the "night-time, the person or persons so indicted shall be thereof "fully acquitted and discharged." Sect. 42. By 10 and 11 Will. 3. c. 23. "Whoever shall apprehend any person guilty of burglary shall have a certificate, "exempting him from all parish and ward offices." By 58 Geo.3. c. 70. s. 2. this certificate cannot be assigned to any other per son. + Sect. 43. By 10 Geo. 3. c. 48. "Buyers and receivers of "stolen jewels, gold or silver plate, watches, when the stealing "shall have been accompanied with a burglary, shall be triable as well before the conviction of the principal, whether he shall "be in or out of custody, as after, and transported for fourteen "years." 66 CHAP. XVIII. OF ARSON. ARSON is a felony at common law, in maliciously and voluntarily burning the house of another by night or by day. And I shall consider, 1. What is such a house in which arson may be committed. 2. Whether this offence may be committed in the offender's own house. 3. How much of the house ought to be burnt. 4. With what degree of malice. + 5. In what cases the benefit of clergy is taken from this offence. As to THE FIRST POINT, viz. What is such a house in which arson may be committed. Sect. 1. It seems agreed, that not only a mansion-house, and the principal parts thereof, but also any other house and the outbuildings, as barns and stables adjoining thereto, and also barns full of corn, whether they be adjoining to any house or not, are so far secured by law, that the malicious burning of them is arson. And it is said, that in an indictment they are well expressed by the word domus, without adding mansionalis. Sect. 2. But it seems, that the burning of the frame of a house or of a stack of corn, &c. is not accounted arson, because it cannot come under the word domus, which seems at present to be thought necessary in every indictment of arson. Sect. Taylor's case, Judd's case, Rex v. Donavan, Cases C. L. 64. S. C. 2 Blk. Holme's case, 1 Jones, 351. C. Car. 377. Sed vide Foster, 116. Rex v. Spalding, Bury Lent Assizes, 1780, on a case re served, Cases Crown Law, 193. Rex v. Breeme, 1780, on a case reserved, Cases Pedley's case, Sect. 3. Yet anciently the burning of a stack of corn was accounted arson; † and now by 9 Geo. 1. c. 22. it is arson to set fire to any "house, barn, out-house; or to any hovel, cock, mow, or stack of corn, straw, hay, or wood." + Sect. 4. But it has been determined, that a paper-mill is not an out-house, within the meaning of the statute. By statute 9 Geo. 3. c. 29. s. 2. "Whereas no effectual pro"vision hath heretofore been made for preventing the burning of mills, be it enacted, that if any person or persons shall (after "the 1st day of July, 1796,) wilfully or maliciously burn or set "fire to any wind saw-mill or other wind-mill, or any water"mill or other mill, such person so offending, being lawfully "convicted thereof, shall be adjudged guilty of felony without "benefit of clergy." Sect. 5. It has also been determined, that setting fire to a parcel of unthrashed wheat in the night, is not sufficiently descriptive of the offence of setting fire to "a cock, mow, or stack " of corn," &c. to bring the offender within the statute. Sect. 6. It has been determined, that the setting fire to an apartment of a common gaol of a county to which a dwellinghouse for the keeper to live in adjoins, the entrance into the prison being through the dwelling-house, is arson, although a wall separates the prison from the house. As to THE SECOND POINT, viz. Whether arson may be committed in the offender's own house. Sect. 7. It seems clearly agreed, that one seised in fee, or but possessed for years, of a house standing by itself at a distance from all others, cannot commit felony in burning the same. + Sect. 8. It has also been decided, that a tenant in possession of a copyhold dwelling-house cannot be guilty of arson by burning the same, although he had a long time before surrendered it into the hands of the lord of the manor, to the use of another person, his heirs and assigns, for securing the payment of money borrowed; for while the tenant continues in possession, it is his own house. + Sect. 9. It has also been decided, upon the same reason, that a tenant in possession, under an agreement for a lease for three years, from a person who held under a building lease, is not guilty of arson by burning the house, for it is the injury to the possession which this law means to punish. Sect. 10. It has also been decided, that a tenant from year to year, or from month to month, cannot be guilty of arson by S. C. Cald. 218. burning the house of which he is so in possession. 1 Hale, 568, 569. 3 Inst. 67. Sect. 11. Also it seems the much stronger opinion, that a man so seised or possessed of a house in a town, who burns his own with an intent to burn his neighbour's, but in the Cro. Car. 338. event burns his own only, is not guilty of arson; for by the general tenor of the books speaking of this offence, it seems to Dalt. c. 105. be be supposed to be done in the house of another, and not of the offender. (1) 116. + Sect. 12. It is however determined, that a widow entitled to Harris' case, dower, but no dower assigned, from a house, the equity of the Foster, 113 to redemption of which had descended from her husband to her infant children, and for whose benefit she had let it and received the rent, is guilty of arson by burning it in the possession of her tenant. And it was said, that if she had been seised of the freehold, it would still have been felony; from whence it is contended, that a reversioner who shall maliciously fire the houses in possession of his tenants under leases from himself or his ancestors, will be guilty of arson." + Sect. 13. It has also been determined, that if a pauper admitted into a parish poor-house set fire to the room in which she with other paupers sleep, she is thereby guilty of arson; for this is the house of the parish. + Sect. 14. So also it has been determined to be arson in a Rex v. Donaprisoner confined for debt in a county gaol, to set fire to the little van, 2 Bl. Rep. box which forms his aparment in the prison. 682. Sect. 15. So also, although no act which is only a crime in re- Kelynge, 29. spect of the injury which it does, or may do, to another, be made Fost. 115, 116. felony by reason of an intention thereby to commit a felony, if such intention be not executed; yet if the house set fire to be in a town, this is certainly an offence highly punishable in regard of the malice thereof, and the great danger to the public which attends it, and the offender may be severely fined, and imprisoned during the king's pleasure, and set on the pillory, and bound to his good behaviour during life. As to THE THIRD POINT, viz. How much of such house ought to be burnt. Sect. 16. It seems to be clearly agreed, that neither a bare intention to burn a house, nor even an actual attempt to do it by putting fire to part of a house, will amount to felony, if no part of it be burnt; for the indictment must have the words incendit et combussit. Sect. 17. But it is certain, that if any part of the house be burnt, the offender is guilty of felony, notwithstanding the fire afterwards be put out, or go out of itself. By statute 6 Anne, c. 21. " any servant negligently setting fire "to a house or out-houses, shall, on conviction before two jus"tices of the peace, forfeit £100, or be sent to the house of cor"rection for eighteen months." 66 By 43 Geo. 3. c. 58. s. 4. it is enacted, "That if any person or persons, from and after the 1st of July, 1803, shall, either "in England or Ireland, wilfully, maliciously, and unlawfully, "set fire to any house, barn, granary, hop oast, malt-house, " stables, (1) But if he set fire to his own house, maliciously intending to fire the house of B. and also thereby do burn the house of B. he is guilty of ar 1 Hale, 570. Dalt. c. 105. 4 Comm. 222. S Inst. 66. son; or if he set fire to his own house in a town, and thereby in fact others be burnt down, he is also guilty of arson. (2 East, 1031. Isaac's case.) (a) 1 Hale, 569. ❝stables, coach-house, out-house, mill, warehouse, or shop, "whether such house, barn, granary, hop oast, malt-house, " stable, coach-house, out-house, mill, warehouse, or shop shall "then be in the possession of the person or persons so setting "fire to the same, or in the possession of any other person or persons, or of any body corporate, with intent thereby to in'jure or defraud his majesty, or any of his majesty's subjects, or any body corporate, that then and in every such case the person or persons so offending, their counsellors, aiders, and "abettors, knowing of and privy to such offence, shall be and are hereby declared to be felons, and shall suffer death as in "cases of felony, without benefit of clergy." σε 66 The statute 52 Geo. 3. c. 130. "for the more effectual pu"nishment of persons destroying the properties of his majesty's subjects, and enabling the owners of such properties to re"cover damages for the injury sustained," recites the passing of the statutes 1.Geo. 1. s. 2. c. 5., 9 Geo. 1. c. 22., 9 Geo. 3. c. 29., 41 Geo. 3. c. 24., and 43 Geo. 3. c. 58. and that it is expedient and necessary that more effectual provisions should be made for the protection of property not within the provisions of the said acts; and enacts," that every person who shall, from " and after the passing of this act, wilfully or maliciously burn or "set fire to any buildings, erections, or engines, which shall be "used or employed in the carrying on or conducting of any "trade or manufactory, or any branch or department of any "trade or manufactory of goods, wares, or merchandize of any "kind or description whatsoever, or in which any goods, wares, " or merchandize shall be warehoused or deposited, shall, upon "being lawfully convicted thereof, be adjudged guilty of felony, "without benefit of clergy, and shall suffer death as in cases of "felony without benefit of clergy." As to THE FOURTH POINT, viz. With what degree of malice such house ought to be burnt. Sect. 18. It seems clear, that if the fire happened through negligence (a) or mischance, it cannot make him who is the unfortunate cause of it, guilty of arson; for the indictment must allege the offence to have been done voluntariè, malitiâ suâ præcogitatâ et felonice. Yet if one maliciously intending to burn only the house of A. happen thereby to burn the house of B. it is certain that he may be indicted as having maliciously burned the house of B. for 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 levelled against him who suffers by it. As to THE FIFTH POINT, viz. In what cases arson is deprived of the benefit of clergy. Sect. 19. By 4 and 5 Philip and Mary, c. 4. it is enacted, "That all and every person and persons that shall maliciously "command, hire, or counsel any person or persons wilfully to "burn any dwelling-house, or any part thereof, or any barn then having corn or grain in the same, shall not have the benefit of "his or their clergy." + Sect. |