CHAPTER 11

ARSON

§ 375. Definition and nature.

§ 376. Grade and degrees of offense.

§ 377. The property burned-Dwelling house.

- Other structures made the subject of arson by statute.
Occupancy.

Burning jail in order to escape.

- Setting fire to one building and burning another.

§ 391. Burning for purpose of defrauding insurance company.

§ 375. Definition and nature. Arson has been defined to be the wilful and malicious burning of the dwelling house of another, either by night or by day. Blackstone defines it as the malicious and wilful burning of the house or outhouse of another man. And numerous similar definitions are to be found in the textbooks and reports. It

is defined by statute in many of the states, some of which declare it to be the wilful and malicious burning of a building with intent to destroy it. The offense has been extended by statute in most jurisdictions so as to include the burning of other buildings than dwelling houses, and under some circumstances the burning of one's own house. As a rule, statutes of this character will be construed in the light of the common law, and will not be deemed to have changed the common-law essential of the offense except in so far as the intent of the legislature to do so is clearly indicated.8

At common law, and except where the rule has been changed by statute, arson is regarded as an offense against the security of the habitation, or, as is sometimes said, against the possession, and

9

The unlawful and malicious burning of the house of another. Mai v. People, 224 Ill. 414, 79 N. E. 633.

The wrongful and malicious burning of the house or outhouse of another. State v. Brett, 144 La. 980, 81 So. 461.

The wilful and malicious burning of the dwelling house or outhouse within the curtilage of another. People v. Covitz, 262 Ill. 514, 104 N. E. 887.

4 See the statutes of the various states and the following cases: State v. Fry, 98 Tenn. 323, 39 S. W. 231; State v. Hannett, 54 Vt. 83.

The wilful and malicious burning of the house or other tenements of another person. State v. Blumenthal,

133 Ark. 584, 203 S. W. 36, L. R. A. 1918 E 482; State v. Hanna, 131 Ark. 129, 198 S. W. 881; State v. Snellgrove, 71 Ark. 101, 71 S. W. 266.

The malicious and wilful burning of the house or outhouse of another. Howard v. State, 109 Ga. 137, 34 S. E. 330; McLane v. State, 4 Ga. 335.

5 People v. Abrams, 174 Cal. 172, 162 Pac. 395; People v. Fong Hong, 120 Cal. 685, 53 Pac. 265; People v. De Winton, 113 Cal. 403, 45 Pac. 708, 33 L. R. A. 374, 54 Am. St. Rep. 357; State v. Young, 9 N. D. 165, 82 N.

W. 420; Clemens v. State, Okla. Cr. 187 Pac. 1100; State v. Lintner, 19 S. D. 447, 104 N. W. 205.

6 See § 379, infra.

7 See § 382, infra.

8 See Heard v. State, 81 Ala. 55, 1 So. 640. And see § 69, supra.

9 United States. United States v. Cardish, 143 Fed. 640.

Alabama. Williams v. State, 177 Ala. 34, 58 So. 921, Ann. Cas. 1915 A 584.

California. People v. De Winton, 113 Cal. 403, 45 Pac. 708, 33 L. R. A. 374, 54 Am. St. Rep. 357.

Connecticut. State v. Keena, 63 Conn. 329, 28 Atl. 522; State v. Toole, 29 Conn. 342, 76 Am. Dec. 602. Florida. Hicks v. State, 43 Fla. 171, 29 So. 631. Georgia. Harrell v. State, 121 Ga. 607, 49 S. E. 703; Rice v. State, 16 Ga. App. 128, 84 S. E. 609.

Illinois. People v. Covitz, 262 Ill. 514, 104 N. E. 887.

Kentucky. Com. v. Elliston, 14 Ky. L. Rep. 216, 20 S. W. 214. Massachusetts. Com. v. Makely, 131 Mass. 421.

Michigan. People v. Handley, 93 Mich. 46, 52 N. W. 1032; People v. Fairchild, 48 Mich. 31, 11 N. W. 773; Snyder v. People, 26 Mich. 106, 12 Am. Rep. 302.

not against the right of property.10 But some of the statutes have made it a crime against property rights as well as against the habitation or possession.11

§ 376. Grade and degrees of offense. Arson was a felony at common law,12 and is generally so under modern statutes, 18 although when committed under certain circumstances it is sometimes made a misdemeanor.14 In some states it is divided into degrees, distin

guished by the character of the buildings burned or the circumstances under which the offense is committed.15 Such a division merely relates to the punishment, and does not effect the commonlaw elements of the offense. 16 In other states where the offense is not in terms divided into degrees it is classified as to the penalty with reference to the danger to human life and the time of its commission.17

§ 377. The property burned-Dwelling house. The word "house" in the common-law definition of arson means a dwelling house, and to constitute arson at common law the building burned must be a dwelling house, 18 or an outhouse within the curtilage of a dwelling house. 19 And in many of the states where other structures have been made the subject of arson,20 the statute makes the offense arson in a higher degree or provides for a heavier punishment where the building burned is a dwelling house,21 or is within the curtilage of a

Benbow v. State, 128 Ala. 1, 29 So. 553; Granison v. State, 117 Ala. 22, 23 So. 146.

In New Jersey where there are no felonies it is either a misdemeanor or a high misdemeanor. State V. Spence, 81 N. J. L. 265, 79 Atl. 1029.

15 See the statutes of the various states and the following cases: Alabama. Peinhardt v. State, 161 Ala. 70, 49 So. 831; Benbow v. State, 128 Ala. 1, 29 So. 553; Heard v. State, 81 Ala. 55, 1 So. 640; Graham v. State, 40 Ala. 659.

Kansas. State v. Nolan, 48 Kan. 723, 29 Pac. 568, 30 Pac. 486.

Minnesota. State v. Roth, 117 Minn. 404, 136 N. W. 12; State v. Grimes, 50 Minn. 123, 52 N. W. 275. Missouri. State v. McCoy, 162 Mo. 383, 62 S. W. 991; State v. Jones, 106 Mo. 302, 17 S. W. 366.

New York. People v. Fanshaive, 137 N. Y. 68, 32 N. E. 1102; Dedieu v. People, 22 N. Y. 178; Hennessey v. People, 21 How. Pr. 239.

See also §§ 377-391, infra.

16 Heard v. State, 81 Ala. 55, 1 So. 640.

17 State v. Brett, 144 La. 980, 81

So. 461. And see §§ 380, 387, infra.

18 United States v. Cardish, 143 Fed. 640; Williams v. State, 177 Ala. 34, 58 So. 921, Ann. Cas. 1915 A 584; State v. Blumenthal, 133 Ark. 584, 203 S. W. 36, L. R. A. 1918 E 482; Overstreet v. Com., 147 Ky. 471, 144 S. W. 751; State v. Fry, 98 Tenn. 323, 39 S. W. 231.

What has been said, in treating of burglary, as to what constitutes a dwelling house, is equally applicable to arson, for any building that is the subject of burglary at common law is also the subject of arson. 1 Hale P. C. 567. See § 457 et seq., infra. 19 See § 378, infra. 20 See § 379, infra.

21 State v. Haynes, 66 Me. 307, 22 Am. Rep. 569; State v. Hill, 55 Me. 365; Com. v. Hayden, 150 Mass. 332, 23 N. E. 51; Com. v. Barney, 10 Cush. (Mass.) 478; Spears v. State, 92 Miss. 613, 46 So. 166, 16 L. R. A. (N. S.) 285; Hall v. State, 3 Lea (71 Tenn.) 552; Hooker v. Com., 13 Gratt. (Va.) 763; Colbert v. State, 125 Wis. 423, 104 N. W. 61; State v. Atkinson, 88 Wis. 1, 58 N. W. 1034

dwelling house, 22 or where the dwelling house of another is burned 23 or endangered 24 by setting fire to any building.

A dwelling house has been defined to be a house in which human beings usually stay, lodge or reside.25 It is not enough that it was built for or has been used as a dwelling house in the past, but it must be actually occupied as a dwelling at the time of the commission of the offense.26 It is not necessary that it be used exclusively as a dwelling, however.27 It is generally held that a jail is a dwelling house, especially where the jailer and his family reside there.28 And the same is true of a shop or store which is also occupied as a dwelling.29

An entire building is a dwelling house if part of it is used as a habitation and part for other purposes, if there is an internal communication between the two parts.30 And where the upper story of a building is used as a dwelling house, it is a dwelling house though the lower story is used as a store.31 But if there is no interior communication between different parts of the same building, separately occupied, the parts are to be regarded as separate buildings.32

22 Com. V. Hamilton, 15 Gray (Mass.) 480.

23 Early v. Com., 86 Va. 921, 11 S. C. 795; Hooker v. Com., 13 Gratt. (Va.) 763; Colbert v. State, 125 Wis. 423, 104 N. W. 61.

24 State v. Myer, 259 Mo. 306, 168 S. W. 717.

25 State v. Stringer, 105 Miss. 851, 63 So. 270.

"Every house for the dwelling and habitation of man." McLane v. State, 4 Ga. 335.

In New York the statute provides that every house which shall have been usually occupied by persons lodging therein at night shall be deemed a dwelling house of any person 80 lodging therein. Woodford People, 62 N. Y. 117.

V.

26 See § 380, infra. 27 United States v. Cardish, 145 Fed. 242.

28 State v. Whitmore, 147 Mo. 78, 47 S. W. 1068; State v. Johnson, 93 Mo. 73, 5 S. W. 699; People v. Cotteral, 18 Johns. (N. Y.) 115; People v. Van Blarcum, 2 Johns. (N. Y.) 105;

Com. v. Posey, 4 Call (Va.) 109, 2
Am. Dec. 560.

Jails are within many of the statutes making buildings other than dwelling houses the subject of arson. See $379, infra.

29 McLane v. State, 4 Ga. 335; State v. Jones, 106 Mo. 302, 17 S. W. 366; State v. Williams, 90 N. C. 724, 47 Am. Rep. 541; State v. Outlaw, 72 N. C. 598; State v. Kroscher, 24 Wis. 64.

Shops and stores are the subject of arson under most of the statutes whether occupied as a dwelling or not. See § 379, infra.

30 A school building, part of which was occupied as a dwelling by teachand others. United States v. Cardish, 145 Fed. 242.

ers

A room used for the storage of fodder, joined to a dwelling house by an uninclosed passage and roof, is a part of the dwelling house. Spears v. State, 92 Miss. 613, 46 So. 166, 16 L. R. A. (N. S.) 285.

31 State v. Jones, 171 Mo. 401, 71 S. W. 680; 94 Am. St. Rep. 786.

32 State v. Toole, 29 Conn. 342, 76