§ 378. Outhouses; curtilage. The term house or dwelling house, as used in the law of arson, includes all outhouses which are within the curtilage or common inclosure, and which are commonly used in connection with the dwelling proper.33 But outhouses which are not within the curtilage or common inclosure are not the subject of arson at common law.34 Some of the statutes expressly make outhouses the subject of arson.35 Primarily "outhouse" means a building adjacent to a dwelling house and subservient to it, but distinct from the mansion itself.36 But as used in some of the statutes it has been held to include houses of any description other than dwelling houses.87 In some states it is provided by statute that no outhouse, not adjoining a dwelling house, nor under the same roof, although within the curtilage thereof, shall be deemed parcel of such dwelling house unless some person lodge therein at night.38 § 379. - Other structures made the subject of arson by statute. By statute in most jurisdictions the offense of arson has been ex Am. Dec. 602; People v. Fairchild, 48 A house consisting of two distinct tenements, owned and occupied by different persons severally, should not be described as the dwelling house of both. State v. Toole, 29 Conn. 342, 76 Am. Dec. 602. 33 1 Hale P. C. 570; 4 Bl. Com. 221; Anon., Year Book 11 Hen. VII, 1. See also the following decisions: Arkansas. State v. Blumenthal, 133 Ark. 584, 203 S. W. 36, L. R. A. 1918 E 482. Connecticut. State v. McGowan, 20 Conn. 245, 52 Am. Dec. 336. Kentucky. Overstreet v. Com., 147 Ky. 471, 144 S. W. 751. Maine. State v. Warren, 33 Me. 30; State v. Shaw, 31 Me. 523. Massachusetts. Com. v. Barney, 10 Cush. 480. Michigan. Curkendall v. People, 36 Mich. 309; People v. Taylor, 2 Mich. 250. North Carolina. State v. Porter, 90 N. C. 719. Virginia. Page v. Com., 26 Gratt. 943; Hooker v. Com., 13 Gratt. 763. "The curtilage of a dwelling house is a space, necessary and convenient and habitually used, for the family purposes, the carrying on of domestic employments. It includes the garden, if there be one. It need not be separated from other lands by fence." State v. Shaw, 31 Me. 523. And see § 379, infra. 34 Curkendall v. People, 36 Mich. 309; State v. Porter, 90 N. C. 719. 35 See the statutes of the various states and the cases cited in the following notes: 36 Carter v. State, 106 Ga. 372, 32 S. E. 345, 71 Am. St. Rep. 262. 37 Carter v. State, 106 Ga. 372, 32 S. E. 345, 71 Am. St. Rep. 262; Jones V. Hungerford, 4 Gill. & J. (Md.) 402. 38 To make an outhouse not adjoining a dwelling house nor under the same roof there with parcel thereof under such a provision, it must be within the curtilage of the dwelling and occupied therewith, and some person must usually lodge therein at night. Page v. Com., 26 Gratt. (Va.) 943. tended so as to include the burning of other buildings than dwelling houses.39 For example, under many of the statutes it is arson to burn a barn,40 a cornerib, cornpen, or cornhouse, a granary,42 a ginhouse or cotton gin,48 or cotton house, a tobacco manufactory, a shop,46 a store,47 a storehouse,48 a warehouse, 49 a church or meeting Oregon. State v. Moyer, 76 Ore. 396, 149 Pac. 84. Pennsylvania. Sampson v. Com., 5 Watts & S. (Pa.) 385. South Carolina. State v. Copeland, 46 S. C. 13, 23 S. E. 980. Tennessee. State v. Fry, 98 Tenn. 325, 39 S. W. 231. Virginia. Page v. Com., 26 Gratt. (Va.) 943. A barn is a building. Wolf v. Com., 30 Gratt. (Va.) 833. A crib or granary is not a barn. State v. Jim, 53 N. C. (8 Jones Law) 459; State v. Laughlin, 53 N. C. (8 Jones Law) 455. It is arson at common law to burn a barn if it is within the curtilage of a dwelling house, but not otherwise. See § 378, supra. 41 Davis v. State, 152 Ala. 82, 44 So. 545; Savage v. State, 8 Ala. App. 44 334, 62 So. 999, certiorari denied 184 Ala. 1, 63 So. 1006; State v. Millican, 15 La. Ann. 557; State v. Copeland, 46 S. C. 13, 23 S. E. 980; Anderson v. Com., 83 Va. 326, 2 S. E. 281. A cabin built for and previously occupied as a dwelling, used temporarily by the owner for the storage of corn, is not a corncrib or cornpen. Thomas v. State, 116 Ala. 461, 22 So. 666. 42 A granary is a building. State v. Huffman, 69 W. Va. 770, 73 S. E. 292. 48 State v. Rogers, 168 N. C. 112, 83 S. E. 161; State v. Green, 92 N. C. 779; State v. Thorne, 81 N. C. 555. A cotton gin is a house. Caddell v. State, 50 Tex. Cr. 380, 97 S. W. 705. 44 Henderson v. State, 105 Ala. 82, 16 So. 931; Avant v. State, 71 Miss. 78, 13 So. 881. 45 A factory is a manufactory. Langhorne v. Com., 76 Va. 1012. 46 State v. Morgan, 98 N. C. 641, 3 S. E. 927. 47 Granison v. State, 117 Ala. 22, 23 So. 146. 48 Overstreet v. Com., 147 Ky. 471, 144 S. W. 751; State v. Sandy, 3 Ired. (25 N. C.) 570. A storehouse is a building and a house. Hall v. State, 3 Lea (71 Tenn.) 552. A two-story building is a storehouse, where the lower story is used as a storehouse and the upper as a lodging house, and there is no connection between them. State v. Biles, 6 Wash. 186, 33 Pac. 347. 49 Com. v. Uhrig, 167 Mass. 420, 45 N. E. 1047; Allen v. State, 10 Ohio St. 287. A warehouse is a building. Clug house,50 a school house,51 a jail or prison,52 a building erected for public use,58 any building,54 any house.55 Some statutes include also A building used as a school house and also as a dwelling house is a dwelling house. See § 377, supra. A building erected for and previously occupied as a dwelling house, but used as a public school house while vacant, by permission of the last occupant, is not a building erected for public use. Gilbreath v. State, 15 Ala. App. 588, 74 So. 723. 52 Kehoe v. Com., 149 Ky. 400, 149 S. W. 818. A jail is a building, Crow v. State, 136 Tenn. 333, 189 S. W. 687, 1 A. L. R. 1160; and also a house, Stevens v. Com., 4 Leigh (Va.) 683. In a number of states a jail or prison is held to be a dwelling house. See $377, supra. As to whether it is arson for a prisoner to burn a jail with intent to escape, see § 389, infra. 53 State v. Kingsbury, 58 Me. 238. A building erected for and previ ously occupied as a dwelling house, but used as a public school house while vacant, by permission of the last occupant, was held not to be within such a provision. Gilbreath v. State, 15 Ala. App. 588, 74 So. 723. 54 Florida. Goff v. State, 60 Fla. 13, 53 So. 327.. Illinois. People v. Covitz, 262 Ill. 514, 104 N. E. 887. Indiana. Garrett v. State, 109 Ind. 527, 10 N. E. 570. New Jersey. State v. Spence, 81 N. J. L. 265, 79 Atl. 1029. South Dakota. State v. Lintner, 19 S. D. 447, 104 N. W. 205. Tennessee. Hall v. State, 3 Lea (71 Tenn.) 552. Virginia. Wolf v. Com., 30 Gratt. (Va.) 833. West Virginia. State v. Huffman, 69 W. Va. 770, 73 S. E. 292. A building is defined by statutes in some states as "any house, edifice, structure, vessel, or other erection, capable of affording shelter for human beings, or appurtenant to or connected with an erection so adapted." People v. Russell, 81 Cal. 616, 23 Pac. 418; State v. Lintner, 19 S. D. 447, 104 N. W. 205. Under this definition it is not necessary that the structure should have been intended for or used as a habitation, but it is sufficient if it is capable of affording shelter for human beings. People v. Fisher, 51 Cal. 319; State v. Lintner, 19 S. D. 447, 104 N. W. 205. A box car in use as a freight car is a building within this definition. State v. Lintner, 19 S. D. 447, 104 N. W. 205. In Clugston v. Garretson, 103 Cal. 441, 37 Pac. 469, a coal company's yard was held to be prima facie appurtenant to or connected with a warehouse, and therefore within this definition. A building in course of construction designed for a dwelling house, held sufficiently completed to be a building. Van Immons v. State, 29 Ohio C. C. 681. 55 People v. Fisher, 51 Cal. 319; McDonald v. Com., 86 Ky. 10, 4 S. W. 687; Wallace v. Young, 5 B. Mon. (44 Ky.) 155; Hall v. State, 3 Lea (71 Tenn.) 552; Smith v. State, 23 Tex. App. 357, 5 S. W. 219, 59 Am. Rep. 773. bridges,56 and stacks of hay, etc.57 Some make it arson or a separate offense to burn any insured property for the purpose of defrauding the insurer.58 Some of the statutes provide a greater punishment for burning a building in a city, town or village.59 § 380. Occupancy. At common law and under many of the statutes, to constitute a dwelling house, within the definition of arson, the house must not be merely intended for use as a residence and fitted for such use, but it must be occupied as a dwelling at the time of the fire.60 A building in course of construction but which is un A freight car which has been taken off the wheels, is supported by permanent posts, and to which a platform has been attached, and which is used as a freight warehouse, is a house. Carter v. State, 106 Ga. 372, 32 S. E. 345, 71 Am. St. Rep. 262. A cotton gin resting on uninclosed posts, and having an opening on one end which could not be closed, is a house. Caddell v. State, 50 Tex. Cr. 380, 97 S. W. 705. A person who tears down a house and then burns the logs and lumber of which it was built cannot be convicted of burning a house. Mulligan v. State, 25 Tex. App. 199, 7 S. W. 664, 8 Am. St. Rep. 435. The Texas statute defines a house as "a building, edifice or structure enclosed with walls and covered, whatever may be the materials used for building." Allen v. State, 62 Tex. Cr. 501, 137 S. W. 1133; Caddell v. State, 50 Tex. Cr. 380, 97 S. W. 705; Mulligan v. State, 25 Tex. App. 199, 7 S. W. 664, 8 Am. St. Rep. 435. 56 Duncan v. State, 29 Fla. 439, 10 So. 815; Com. v. Fitzgerald, 164 Mass. 587, 42 N. E. 119; Hall v. State, 3 Lea (71 Tenn.) 552. 57 Brinegar v. State, 82 Neb. 558, 118 N. W. 475; Burger v. State, 34 Neb. 397, 51 N. W. 1027; State v. Hall, 93 N. C. 571. 59 Carter v. State, 106 Ga. 372, 32 S. E. 345, 71 Am. St. Rep. 262; Smith v. State, 64 Ga. 605; Kinsey v. State, 12 Ga. App. 422, 77 S. E. 369. 60 Connecticut. State v. McGowan, 20 Conn. 245, 52 Am. Dec. 336. Kentucky. Com. v. Elliston, 14 Ky. L. Rep. 216, 20 S. W. 214. Maine. State v. Warren, 33 Me. 30. Massachusetts. Com. v. Francis, Thatch. C. C. 240. Virginia. Gratt. 763. England. Elsmore v. Inhabitants, etc., 8 Barn. S. C. 461; Reg. v. Allison, 1 Cox C. C. 24. Hooker V. Com., 13 The rule is the same as in burglary, see § 461, infra. A house cannot be the dwelling house of a person who has never occupied it as dwelling house. Com. v. Hayden, 150 Mass. 332, 23 N. E. 51; Com. v. Barney, 10 Cush. (Mass.) 478; People v. Handley, 93 Mich. 46, 52 N. W. 1032. To sustain a conviction for burning the dwelling house of a named person, it is not sufficient to show that it was a dwelling house and that such person owned it, but it must appear that it such person's dwelling house. Hicks v. State, 43 Fla. 171, 29 So. 631. was 58 See § 391, infra. finished and has never been occupied is not a dwelling house within. this rule,61 and it has been held that it is not within a statute punishing the burning of an uninhabited dwelling house.62 Some of the statutes, however, in terms make it arson to burn an unfinished dwelling house or other building.63 And many of them also make it arson to burn an uninhabited dwelling house.64 And an unoccupied dwelling house is within a statute punishing the burning of a building or house.65 And a house occupied as a dwelling house is a dwelling house although the occupants are temporarily absent at the time of the fire.66 Many of the statutes making buildings other than dwelling houses the subject of arson,67 make it arson in a higher degree or provide a greater punishment where the building burned is an occupied dwelling house,68 or a building in which human beings are customarily to be found, or where there is actually a human being in the house," 69 61 State v. McGowan, 20, Conn. 245, 52 Am. Dec. 336; State v. Wolfenberger, 20 Ind. 242. 62 Davis v. State, 153 Ala. 48, 44 So. 1018, 127 Am. St. Rep. 17, 15 Ann. Cas. 547. 63 Garrett v. State, 109 Ind. 527, 10 N. E. 570. 64 Williams v. State, 177 Ala. 34, 58 So. 921, Ann. Cas. 1915 A 584; Davis v. State, 153 Ala. 48, 44 So. 1018, 127 Am. St. Rep. 17, 15 Ann. Cas. 547; Garrett v. State, 109 Ind. 527, 10 N. E. 570; Emig v. Daum, 1 Ind. App. 146, 27 N. E. 322. A building built for and at one time occupied as a dwelling house, but which had not been used as such for eight or ten years, and had become dilapidated and no longer fit for that purpose, is not an uninhabited dwelling house. Henderson v. State, 105 Ala. 82, 16 So. 931. But a building constructed for and previously occupied as a dwelling house, but which had been left vacant for a short time, and was temporarily used as a public school, was held to be an uninhabited dwelling house. Gilbreath v. State, 15 Ala. App. 588, 74 So. 723. 65 Dick v. State, 53 Miss. 384. 70 In prosecutions for burning buildings with intent to injure the insurer, the character of the building is immaterial, and a building intended to be used as a residence may be described as a dwelling house though not occupied as such at the time of the fire. People v. Mix, 149 Mich. 260, 112 N. W. 907, 112 Ann. Cas. 393. 66 State v. McGowan, 20 Conn. 245, 52 Am. Dec. 336; Meeks v. State, 102 Ga. 572, 27 S. E. 679; Johnson v. State, 48 Ga. 116; State v. Warren, 33 Me. 30; Com. v. Barney, 10 Cush. (Mass.) 478. 67 See § 379, supra. 68 See the statutes of the various states and the following cases: Stallings v. State, 47 Ga. 572; State v. Gregory, 33 La. Ann. 737; Rist v. State, 93 Miss. 841, 47 So. 433; Spears v. State, 92 Miss. 613, 46 So. 166, 16 L. R. A. (N. S.) 285. 69 State v. Allison, 146 La. 495, 83 So. 778; State v. Brett, 144 La. 980, 81 So. 461. 70 See the statutes of the various states and the following cases: California. People v. Abrams, 174 Cal. 172, 162 Pac. 395; People v. |