CHAPTER XIV. OF OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS. 1. Arson. THIS offence consists in the malicious and wilful burning of the house or out-house of another man.-4 Bl. C. 220. It must be malicious and wilful. Therefore if an unqualified person by shooting with a gun happen to set fire to the thatch of a house, this is not felony.-1 Hale, 569; 4 Bl. C. 222. But if a man intending to commit a felony, by accident set fire to another's house, this (as it seems) is arson.Fost. 258. If intending to set fire to the house of A., he accidentally set fire to that of B., it is felony.-1 Hale, 569. If a man by wilfully setting fire to his own house, burn also the house of one of his neighbours, so situated that the fire must necessarily have reached it, this is arson.2 East, P. C. 1031. There must be an actual burning, and merely setting fire does not amount to arson.-4 Bl. Com. 222. But a burning of any part is sufficient.—Ibid. The burning must be of a dwelling-house or out-house parcel of a dwelling-house, as barns, stables, &c.--1 Hale, 567. But the out-house need not be contiguous to the dwellinghouse nor under the same roof.-Ibid. It must be the house or out-house of another man. Burning a man's own house, if another's is not injured, is not arson; but, if done in a town, is at common law a misdemeanor.-4 Bl. Com. 221. Arson is felony at common law.-4 Bl. C. 222. (As to the punishment, see the next head.) 2. Maliciously setting Houses, &c. on Fire with intent to injure or defraud, &c. 66 66 By 7 & 8 Geo. IV. c. 30, s. 2, "if any person shall un"lawfully and maliciously set fire to any church or chapel, or to any chapel for the religious worship of persons dis"senting from the united church of England and Ireland duly registered or recorded, or shall unlawfully and ma"liciously set fire to any house, stable, coach-house, outhouse, ware-house, 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. 66 66 (As to the offence of setting fire, as it respects other kinds of property, see the next Chapter.) By sect. 25, it is enacted that every punishment and forfeiture by this act imposed on any person maliciously committing any offence, whether the same be punishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether the offence shall be committed from malice conceived against the owner of the property in respect of which it shall be committed, or otherwise. By sect. 26, 27, in the case of every felony punishable under this act, accessaries before the fact are punishable as principals, and accessaries after the fact by imprisonment for any term not exceeding two years, with or without hard labour, in the common gaol or house of correction, and also by solitary confinement, at discretion of the court, for the whole or any portion or portions of such imprisonment. The offence described by the statute as to setting fire to houses appears not to be precisely the same as arson at common law, (vide sup. 160,) because an "intent to injure," M &c. is superadded, which is no part of the definition of the offence at common law. It may be necessary, therefore, in some cases still to indict for arson of a house as at common law.--Arch. 259. But see the 25th section above cited (by which it is made unnecessary that there should be malice conceived against the owner of the property). 3. Negligently setting Fire to a House, &c. by Servants. By 6 Ann. c. 31, s. 3, and 14 Geo. III. c. 78, s. 84, "if any servant through negligence or carelessness shall fire or cause to be fired any dwelling-house, or out-houses, or houses or other buildings, to be thereof convicted on the oath of one witness before two or more justices, he shall forfeit £100, to be distributed by the churchwardens, &c. among the sufferers by such fire, in such proportions as to the said churchwardens shall seem just, and in case of default be committed to gaol or the house of correction for eighteen months, to be kept to hard labour." 4. Burglary. This offence consists (at common law) in breaking and entering into the dwelling-house of another by night with intent to commit a felony therein.-3 Inst. 63; 4 Bl. Com. 224. And by 7 & 8 Geo. IV. c. 29, s. 11, it is declared, "that if "any person shall enter the dwelling-house of another with "intent to commit felony, or being in such dwelling-house "commit any felony, and shall in either case break out of "the said dwelling-house in the night-time, such person "shall be deemed guilty of burglary." The time must be night; for in the day-time there is no burglary. If there be day-light or crepusculum enough, left or begun, to discern a man's face withal, it is no burglary, though the sun be set or not risen.-3 Inst. 63; 1 Hale, 547-566; 1 Hawk. c. 38; 4 Bl. C. 224. But this does not extend to moon-light.-Ibid. In the case of a private house, the house must be a dwelling-house to constitute a burglary.-Ibid. And not a distant barn, ware-house or the like, nor an uninhabited house.-Ibid. Nor a shop not used as a dwelling-house.—Ibid, Nor a mere tent or booth erected in a market or fair.Ibid. But burglary may be committed in a house left only for a short season animo revertendi.--Ibid. Or a chamber in a college or inn of court.-Ibid. Or the gate or wall of a town.-Ibid. So burglary may be committed in a barn, stable or outhouse, parcel of the dwelling-house and within the same common fence or curtilage.—Ibid. 66 But by 7 & 8 Geo. 4, c. 29, s. 13, it is provided, " that "no building, although within the same curtilage with the "dwelling-house and occupied therewith, shall be deemed "to be part of such dwelling-house for the purpose of burglary or for any of the purposes aforesaid, unless there "shall be a communication between such building and "dwelling-house, either immediate, or by means of a covered "and inclosed passage leading from the one to the other.” A man cannot be guilty of burglary in his own house.2 East, P. C. 52. If a servant designedly lets in a robber, it is burglary in both.-1 Hale, 553. To constitute burglarious breaking, the breaking or taking the glass out of a window is sufficient.-1 Hale, 552. Or picking a lock (whether of an outer or inner door), or opening it with a false key.—Ibid. 552, 553. Or lifting a latch.-Ibid. 552. Or knocking at a door and rushing in when opened, or obtaining admission by any artifice.-1 Hawk. c. 38, s. 5. But if the door or window be left open, it is no burglary. -Ry. & Mo. 178. To constitute burglarious entering, the putting a hand in to draw out goods, or a pistol to demand money, is sufficient.-1 Hale, 555. There must be a felonious intent, otherwise it is only a trespass.-1 Haw. c. 38, s. 18. But an intent to commit any felony, whether at common law or created by statute, is (by the better opinion) sufficient. Ibid. & 1 Hale, 562. Burglary is a felony at common law.-4 Bl. Com. 228. By 7 & 8 Geo. IV. c. 29, s. 11, “every person convicted of burglary shall suffer death as a felon ;" and by sects. 61 and 4, every accessary before the fact is liable to the same punishment as the principal, and every accessary after the fact to imprisonment not exceeding two years, with or without hard labour, in the common gaol or house of correction, and also to solitary confinement, at discretion of the court, for the whole or any portion or portions of such imprisonment. 66 5. House-breaking. By 7 & 8 Geo. IV. c. 29, s. 12, "if any person shall "break and enter any dwelling-house and steal therein any chattel, money or valuable security to any value whatever," (see "valuable security" defined, post, 168,) every such offender, being convicted thereof, shall suffer death as a felon. But by 3 & 4 Will. IV. c. 44, so much of the 7 & 8 Geo. IV. c. 29, as inflicts the punishment of death in this case, is, from 1 Jan. 1834, repealed; and it is provided that every person convicted thereof as principals, or accessaries before the fact, shall be liable to be transported for life or for any term not less than seven years, as the court shall adjudge, and previously to transportation shall be liable to imprisonment with or without hard labour in the common gaol or house of correction, or to be confined in the penitentiary for any term not exceeding four years, or shall be liable to be imprisoned, with or without hard labour in the common gaol or house of correction, for any term not exceeding four years nor less than one year. |