or lawfully in the house,71 at the time of the fire. Under a statute of the latter character it has been held that there must be some one in the building other than the person or persons doing the forbidden act,72 but there is also authority to the contrary.78 § 381. Value. The value of the building burned is immaterial at common law,74 and under many of the statutes.75 But under some statutes the structure burned must be of a specified value.76 And Principe, 23 Cal. App. 729, 139 Pac. 658. Delaware. State v. Lockwood, 1 Boyce (24 Del.) 28, 74 Atl. 2. Kansas. State v. Nolan, 48 Kan. 723, 29 Pac. 568, 30 Pac. 486. Minnesota. State v. Grimes, 50 Minn. 123, 52 N. W. 275. Missouri. State v. Jones, 171 Mo. 401, 71 S. W. 680, 94 Am. St. Rep. 786; State v. Whitmore, 147 Mo. 78, 47 S. W. 1068; State v. Hayes, 78 Mo. 307. New York. People v. Fanshawe, 137 N. Y. 68, 32 N. E. 1102; Hennessey v. People, 21 How. Pr. 239. Virginia. Early v. Com., 86 Va. 921, 11 S. E. 795. England. Reg. v. Pardoe, 17 Cox C. C. 715. Under such a provision there must be a human being in the building when it takes fire, but if there is, it is immaterial whether he is asleep or awake, or in bed or out, or whether it is practical for him to escape before the building kindles. Woodford v. People, 62 N. Y. 117. It has been held that the presence of a human being in an outhouse within the curtilage of a dwelling house but not connected with it is not within the statute. Com. v. Buzzell, 16 Pick. (Mass.) 153. Such a statute does not apply where the occupants are compelled by the defendant to leave the building before he sets it on fire. Buzzell, 16 Pick. (Mass.) 153. Com. v. 71 Com. v. Buzzell, 16 Pick. (Mass.) 153; Carter v. State, 20 Wis. 680; Lacy v. State, 15 Wis. 13. Where the building is set on fire by a mob, persons who enter it with the mob for the purpose of protecting it are not lawfully within it within the meaning of the statute. Com. v. Buzzell, 16 Pick. (Mass.) 153. 72 People v. Principe, 23 Cal. App. 729, 139 Pac. 658. And see People v. Durkin, 5 Park. Cr. (N. Y.), 243. There cannot be a conviction under such a provision where no one was in the building other than the defendant and his wife, who were charged jointly with the commission of the offense, and the evidence pointed to the guilt of one of them as much as the other. The presumption of the wife's innocence prior to her conviction cannot be invoked against the husband under such circumstances. People v. Abrams, 174 Cal. 172, 162 Pac. 395. 73 See State v. Burgor, 94 Iowa 33, 62 N. W. 696. 74 Clark v. People, 2 Ill. 117; State v. Temple, 12 Me. 214. 75 Henderson v. State, 105 Ala. 82, 16 So. 931; Com. v. Hamilton, 15 Gray (Mass.) 480; Ayres v. State, 115 Tenn. 722, 91 S. W. 195. 76 O'Daniel v. State, 188 Ind. 477, 123 N. E. 241, rehearing denied 124 N. E. 492; Lavelle v. State, 136 Ind. 233, 36 N. E. 135; Emig v. Daum, 1 Ind. App. 146, 27 N. E. 322; Brinegar v. State, 82 Neb. 558, 118 N. W. 475; the value of the property sometimes fixes the degree of the offense or the extent of the punishment.77 § 382. Ownership. - Burning one's own buildings. At common law, and except where the rule has been changed by statute, it is not arson for a person to set fire to a house or building which he himself owns and occupies,78 or which he occupies but does not own,79 or to burn the house of another at his instigation or request,80 or with his consent.81 And this is equally true though the purpose of the burning is to defraud an insurance company, 82 or though the Burger v. State, 34 Neb. 397, 51 N. W. 1027. 77 See the statutes of the various states and the following cases: Alabama. Hannigan v. State, 131 Ala. 29, 31 So. 89; Granison v. State, 117 Ala. 22, 23 So. 146; Henderson v. State, 105 Ala. 82, 16 So. 931; James v. State, 104 Ala. 20, 16 So. 94. Illinois. Clark v. People, 2 Ill. 117. Indiana. Ritchey V. State, 7 Blackf. (Ind.) 168. Massachusetts. Com. v. Uhrig, 167 Mass. 420, 45 N. E. 1047; Com. v. Brailey, 134 Mass. 527. Virginia. Anderson v. Com., 83 Va. 326, 2 S. E. 281; Wolf v. Com., 30 Gratt. 833. West Virginia. State v. Huffman, 69 W. Va. 770, 73 S. E. 292. 78 4 Bl. Com. 221. See also the following decisions: Alabama. Williams v. State, 177 1 Arkansas. State v. Hanna, 131 Ark. 129, 198 S. W. 881. California. People v. De Winton, 113 Cal. 403, 45 Pac. 708. Connecticut. State v. Keena, 63 Conn. 329, 28 Atl. 522. Illinois. People v. Harris, 263 Ill. 406, 105 N. E. 303. 51 N. H. 176. Wisconsin. Kopcyznski v. State, 137 Wis. 358, 118 N. W. 863, 16 Ann. Cas. 865. England. Holme's Case, Cro. Car. 376, W. Jones 351; Isaac's Case, 2 East P. C. 1031; Rex v. Proberts, 2 East P. C. 1030; Rex v. Spalding, 2 East P. C. 1025, 1 Leach C. C. 218. 79 See § 384, infra. 80 Alabama. Heard v. State, 81 Ala. 55, 1 So. 640. Maine. 307. State v. Haynes, 66 Me. house of another is endangered by the fire, or though there is an intent to burn the adjoining house of another, if it is not in fact burned.8 83 It is a misdemeanor at common law, however, to burn one's own building, if adjoining buildings are thereby endangered 84 and it is sometimes made arson by statute.85 And it is arson if the adjoining buildings are burned.86 It is also arson both at common law and under the statutes for a person to burn a house which he owns if it is occupied by another.87 And statutes in many states make it arson for a person to burn a building belonging to himself either generally,88 or under particular circumstances, as where some person is in it at the time,89 or where it contains any property belonging to another,99 or where it adjoins an inhabited dwelling house,91 or where he burns. it with intent to burn the building of another person, 92 or with intent to defraud an insurance company, 93 or with intent to defraud anyone.94 And it is also sometimes provided that one of the part owners of a house is not permitted to burn it.95 It has been held that want of consent of the owner is not an essential element of the statutory offense.96 83 4 Bl. Com. 221; People v. De Winton, 113 Cal. 403, 45 Pac. 708; Holme's Case, Cro. Car. 376, W. Jones 351; Isaac's Case, 2 East P. C. 1031. 84 Heard v. State, 81 Ala. 55, 1 So. 640; Rex v. Isaac, 2 East P. C. 1031; Rex v. Probert, 2 East P. C. 1031. 85 Baker v. State, 25 Tex. App. 1, 8 S. W. 23, 8 Am. St. Rep. 427. 86 4 Bl. Com. 221. See also the following decisions: Arkansas. State v. Hanna, 131 Ark. 129, 198 S. W. 881. Kentucky. Combs v. Com., 93 Ky. 313, 20 S. W. 221. Maine. State v. Hill, 55 Me. 365. Michigan. People v. Fairchild, 48 Mich. 31, 11 N. W. 773. North Carolina. State v. Laughlin, 53 N. C. 354. South Carolina. State v. Sarvis, 45 S. C. 668, 24 S. E. 53, 32 L. R. A. 647, 55 Am. St. Rep. 806. England. Rex v. Pedley, Cald. 218; Isaac's Case, 2 East P. C. 1031; Robert's Case, 2 East P. C. 1030. And see § 390, infra. 88 State v. Wacker, 16 Mo. App. 89 State v. Dinneen, 7 Pennew. (Del.) 505, 76 Atl. 623; State v. Myer, 259 Mo. 306, 168 S. W. 717; Shepherd v. People, 19 N. Y. 537. And see § 380, supra. 90 Mulligan v. State, 25 Tex. App. 199, 7 S. W. 664, 8 Am. St. Rep. 435; Tuller v. State, 8 Tex. App. 501. 91 State v. Myer, 259 Mo. 306, 168 S. W. 717; Shepherd v. People, 19 N. Y. 537. And see § 390, infra. 92 People v. Harris, 263 Ill. 406, 105 N. E. 303. 93 See § 391, infra. 94 United States v. McBride, 7 Mackey (18 D. C.) 371. 95 Mulligan v. State, 25 Tex. App. 199, 7 S. W. 664, 8 Am. St. Rep. 435. 96 Caddell v. State, 50 Tex. Cr. 380, 97 S. W. 705. §383. - Husband and wife. Since, at common law, husband and wife are regarded as one person, the wife cannot be guilty of arson in burning the husband's house; and it can make no difference that she is at the time living apart from him.97 But a part from the question of possession, it is now generally held that a wife may be convicted of arson for burning her husband's property,98 and a husband for burning his wife's property, where the statute gives it to her free from his control.99 So either may be convicted of burning the dwelling house of the other, where it is occupied by the latter alone,1 and statutes in some states expressly provide that either spouse may be convicted of arson for burning the property of the other. It has also been held that a man may be convicted of arson for burning a house belonging to a woman with whom he lives as his wife, where they are not married.3 In jurisdictions where arson relates to the security of the habitation and is an offense against possession only, a husband is not guilty of arson in burning a dwelling house occupied by himself and his wife, jointly, though it may be her property. But where the statute makes arson an offense against the property as well as against possession, either spouse may be convicted for burning a building belonging to the other although it is occupied by or is in the possession of both of them." 6 It is not an element in the statutory definition and need not be alleged. Where the accused is charged with burning the building of another, no issue as to the consent of the owner can arise unless the accused seeks to negative criminal intent by proving consent. People v. Harris, 263 Ill. 406, 105 N. E. 303. 97 March's Case, 1 Moody C. C. 182. 98 Emig v. Daum, 1 Ind. App. 146, 27 N. E. 322. And see Jordan v. State, 142 Ind. 422, 41 N. E. 817. 99 Garrett v. State, 109 Ind. 524, 10 N. E. 570; State v. Shaw, 79 Kan. 396, 100 Pac. 78, 21 L. R. A. (N. S.) 27, 131 Am. St. Rep. 298; State v. Roth, 117 Minn. 404, 136 N. W. 12; Hutchinson v. State, 28 Ohio Cir. Ct. 595. 1 Kopcyznski v. State, 137 Wis. 358, 118 N. W. 863, 16 Ann. Cas. 865. And see Snyder v. People, 26 Mich. 106, 12 Am. Rep. 302. 2 Williams v. State, 177 Ala. 34, 58 So. 921, Ann. Cas. 1915 A 584; State v. Kephart, 56 Wash. 561, 106 Pac. 165, 26 L. R. A. (N. S.) 1123. 8 Com. v. Brooks, 164 Mass. 397, 41 N. E. 660. 4 See § 375, supra. 5 Kopcyznski v. State, 137 Wis. 358, 118 N. W. 863, 16 Ann. Cas. 865. It was formerly so held in Michigan. Snyder v. People, 26 Mich. 106, 12 Am. Rep. 302. But the rule has since been changed by statute. 5 How. Mich. St. § 14589. 6 See 375, supra. 7 Garrett v. State, 109 Ind. 527, 10 N. E. 570; Emig v. Daum, 1 Ind. App. 146, 27 N. E. 322. In Michigan this is the rule by express provision of the statute. 5 § 384. Occupant regarded as owner. In jurisdictions where arson is regarded as an offense against the security of the habitation, or against the possession, when it is said that the house must. be that of another, it is meant that it must be occupied by another, and occupancy is sufficient ownership to sustain a prosecution for the offense. Ownership may therefore be alleged in an occupant or person in possession though he has no property right,10 and even New Jersey. State v. Fish, 27 N. J. L. 323. South Carolina. State v. Perry, 74 S. C. 551, 54 S. E. 764. Texas. Goldsmith v. State, 46 Tex. Cr. 556, 81 S. W. 710; Woolsey v. State, 30 Tex. App. 346, 17 S. W. 546; Tuller v. State, 8 Tex. App. 501. Washington. State v. Biles, 6 Wash. 186, 33 Pac. 347. And see the other cases cited in the following note: 10 Alabama. Hannigan v. State, 131 Ala. 29, 31 So. 89; Johnson v. State, 1 Ala. App. 148, 55 So. 268; Johnson v. State, 1 Ala. App. 151, 55 So. 445. Connecticut. State v. Toole, 29 Conn. 342, 76 Am. Dec. 602. 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. Spira, 264 Ill. 243, 106 N. E. 241; People v. Covitz, 262 Ill. 514, 104 N. E. 887. Indiana. Kruger v. State, 135 Ind. 573, 35 N. E. 1019; Ritchey v. State, 7 Blackf. 168. Kentucky. Young v. Com., 12 Bush (75 Ky.) 243. Maine. State v. Taylor, 45 Me. 322. Michigan. People v. Fairchild, 48 Mich. 31, 11 N. W. 773; Snyder v. People, 26 Mich. 106, 12 Am. Rep. 302. Missouri. State v. Wacker, 16 Mo. App. 417. Nebraska. Burger v. State, 34 Neb. 397, 51 N. W. 1027. New York. People v. Van Blarcum, 2 Johns. 105; People v. Gates, 15 Wend. 159. South Carolina. State v. Carter, 49 S. C. 265, 27 S. E. 106; State v. Copeland, 46 S. C. 13, 23 S. E. 980; State v. Sarvis, 45 S. C. 668, 24 S. E. 53, 32 L. R. A. 647, 55 Am. St. Rep. 806. Tennessee. Heard v. State, 116 Tenn. 713, 94 S. W. 605. Texas. Tinker v. State, 77 Tex. Cr. 506, 179 S. W. 572; Allen v. State, 62 Tex. Cr. 501, 137 S. W. 1133. Vermont. State v. Hannett, 54 Vt. 83. Wisconsin. Kopcyznski v. State, 137 Wis. 358, 118 N. W. 863, 16 Ann. Cas. 865. If the house is occupied by husband and wife, the law regards the husband as occupant, and the offense is against |