though his occupancy of the premises in question is, in fact, wrongful.11 Under this rule, also, a person does not commit arson by burning a house occupied by himself as tenant or otherwise though it may be owned by another.12 And both under this rule and under many of the statutes, the legal owner of a house may be guilty of arson if he burns it while it is occupied by a lessee or other person.13 A mere him, though the property may belong to the wife. State v. Toole, 29 Conn. 342, 76 Am. Dec. 602. And ownership of community property is properly laid in the husband in states where the community property system prevails. Pinckard v. State, 62 Tex. Cr. 602, 138 S. W. 601. If there is no interior communication between different parts of the same building separately occupied, the parts are to be regarded as separate buildings and ownership alleged accordingly, even though such separate occupancy is that of the general owner of the building and his lessee. State v. Toole, 29 Conn. 342, 76 Am. Dec. 602. And see § 380, supra. Under a statute providing that every edifice usually occupied by persons lodging therein at night shall be deemed a dwelling house of any person so lodging therein, ownership of a tenement house may be laid in the tenant of certain rooms therein. Levy V. People, 80 N. Y. 327; Shepherd v. People, 19 N. Y. 537. And see § 380, supra. 11 Kruger v. State, 135 Ind. 573, 35 N. E. 1019; Rex v. Wallis, 1 Moody C. C. 344. 12 Alabama. Williams v. State, 177 Ala. 34, 58 So. 921, Ann. Cas. 1915 A 584; State v. Young, 139 Ala. 136, 36 So. 19, 101 Am. St. Rep. 21; Sullivan v. State, 5 Stew. & P. 175. Connecticut. State v. Keena, 63 Conn. 329, 28 Atl. 522; State v. Toole, 29 Conn. 342, 76 Am. Dec. 602; State v. Lyon, 12 Conn. 487. Maine. Estes v. Estes, 75 Me. 478. Michigan. Snyder v. People, 26 Mich. 106, 12 Am. Rep. 302. New Jersey. State v. Lentz, 92 N. J. L. 17, 107 Atl. 791; State v. Fish, 27 N. J. L. 323. North Carolina. State v. Sandy, 3 Ired. 570. Vermont. Vt. 83. State v. Hannett, 54 England. Holme's Case, Cro. Car. 376, W. Jones, 351; Breeme's case, 2 East P. C. 1026; Rex v. Pedley, 1 Leach C. C. 242. Though not arson, it was a high misdemeanor at common law for a tenant to burn a building belonging to another, of which he was in possession. State v. Blumenthal, 133 Ark. 584, 203 S. W. 36, L. R. A. 1918 E 482; Allen v. State, 10 Ohio St. 287. 13 Alabama. Williams v. State, 177 Ala. 34, 58 So. 921, Ann. Cas. 1915 A 584. California. 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. servant is not an occupant within the rule, however, and his burning of a house, in which he lives may be arson.14 These rules have been changed by statute in many states. So under many of the statutes arson may be committed by a tenant or other person in possession of the premises.15 And under some of them ownership may be laid in the legal owner although the premises are occupied by another.16 § 385. The burning-In general. At common law and except where the rule has been changed by statute there must be an actual burning of the house or building, or some part of it.17 Neither a 14 People v. Smith, 3 How. Pr. (N. Y.) 226. 15 See the statutes of the various states and the following cases: Alabama. Williams v. State, 177 Ala. 34, 58 So. 921, Ann. Cas. 1915 A 584; Peinhardt v. State, 161 Ala. 70, 49 So. 831. Arkansas. 133 Ark. 584, 1918 E 482. California. People v. Abrams, 174 Cal. 172, 162 Pac. 395; People v. Simpson, 50 Cal. 304. Colorado. Lipschitz v. People, 25 Colo. 261, 53 Pac. 1111. District of Columbia. Posey v. United States, 26 App. Cas. 302. Illinois. People v. Covitz, 262 Ill. 514, 104 N. E. 887. Indiana. Hinkle v. State, 174 Ind. 276, 91 N. E. 1090. Missouri. State v. Moore, 61 Mo. Kentucky. Overstreet v. Com., 147 Ky. 471, 144 S. W. 751. Mississippi. Avant v. State, 71 Miss. 78, 13 So. 881. South Carolina. State v. Carter, 49 S. C. 265, 27 S. E. 106. It may be laid in the owner of the fee where it is an uninhabited dwelling house, used temporarily for a schoolhouse by permission of the last occupant. Gilbreath v. State, 15 Ala. App. 588, 74 So. 723. There is no variance between an See also the following decisions: Ala. 659. blackening of the wood by smoke nor a mere scorching of the wood will suffice, but some part of the fiber of the wood must be consumed.18 Nor is it sufficient merely to attempt to burn a building by actually setting a fire,19 nor to set fire to and burn articles in a building,20 where no part of the building itself is burned. It is not necessary, however, that any part of the house shall be wholly consumed, or materially injured, or that the fire shall have any continuance. If there is the slightest burning of any part of the house, the offense is complete, though the fire may be put out, or may go out of itself.21 There need not even be a blaze, but mere charring is sufficient.22 So if the wooden door of a building is charred, it is Texas. Landers v. State, 39 Tex. Cr. 671, 47 S. W. 1008. 18 Graham v. State, 40 Ala. 659; 19 4 Bl. Com. 220; Mary v. State, 24 Ark. 44, 81 Am. Dec. 60; Cochrane v. State, 6 Md. 400. 20 Graham v. State, 40 Ala. 659; O'Daniel v. State, 188 Ind. 477, 123 N. E. 241, rehearing denied 124 N. E. 492; Woolsey v. State, 30 Tex. App. 346, 17 S. W. 546. 21 Alabama. Luke v. State, 49 Ala. 30, 20 Am. Rep. 269; Graham v. State, 40 Ala. 659. 22 California. People v. Simpson, 50 Cal. 304. Iowa. State v. Spiegel, 111 Iowa 701, 83 N. W. 722. Kentucky. Kehoe v. Com., 149 Ky. 400, 149 S. W. 818. North Carolina. State v. Rogers, 168 N. C. 112, 83 S. E. 161. Tennessee. Crow v. State, 186 Tenn. 333, 189 S. W. 687, 1 A. L. R. 1160. immaterial that the rest of the building is fireproof and will not burn.23 It is a misdemeanor at common law to attempt to burn a house by setting fire to it, where there is not such a burning as constitutes arson,24 and the same is true under some of the statutes,25 while some statutes make an attempt to commit arson a felony.26 And by statute in some states it is an offense to set fire to any material with intent to cause a building to be burned,27 or to set fire to a building under certain circumstances.28 Some courts have held that the words "set fire to" in a statute or indictment are synonymous with the word "burn" as defined by the common law,29 but others have held to the contrary.30 § 386. Means by which fire is communicated. It is of no consequence by what means the fire is communicated to the building charged to have been burned, if the burning is designed.31 It need not be applied directly to the building. Thus the offense may be committed by igniting combustible material in or against a building,82 or 23 Crow v. State, 136 Tenn. 333, 189 S. W. 687, 1 A. L. R. 1160. 24 Mary v. State, 24 Ark. 44, 81 Am. Dec. 60. 25 Mary v. State, 24 Ark. 44, 81 Am. Dec. 60; McDonald v. People, 47 Ill. 533. 26 State v. Stephens, 170 N. C. 745, 87 S. E. 131. What acts are sufficient to constitute an attempt has been considered in another section. See § 385. 27 Placing a lighted candle in hay in a barn in such a way that it will set fire to the hay, comes within this provision. State v. Johnson, 19 Iowa 230. 28 State v. Myer, 259 Mo. 306, 168 S. W. 717; State v. Rogers, 168 N. C. 112, 83 S. E. 161. And see other cases cited in the following notes: 29 Graham v. State, 40 Ala. 659; State v. Taylor, 45 Me. 322; Crow v. State, 136 Tenn. 333, 189 S. W. 687, 1 A. L. R. 1160. 30 Arkansas. Mary v. State, 24 Ark. 44, 81 Am. Dec. 60. Maryland. Cochrane v. State, 6 Md. 400. North Carolina. State v. Hall, 93 N. C. 571. Vermont. State v. Babcock, 51 Vt. 570; State v. Dennin, 32 Vt. 158. Virginia. Curran's Case, 7 Gratt. 619; Howel v. Com., 5 Gratt. 664. And see State v. Dinneen, 7 Pennew. (Del.) 505, 76 Atl. 623; State v. Myer, 259 Mo. 306, 168 S. W. 717. In Georgia the statute distinguishes between burning and setting fire, providing that the crime of burning shall be complete when the house is consumed or greatly injured, and that the offense of setting fire to a house shall be complete when any attempt is made to burn it, though no material injury results. 6 Park's Ann. Code 1914, §§ 140, 141. 31 Smith v. State, 23 Tex. App. 357, 5 S. W. 219, 59 Am. Rep. 773. 32 Alabama. Graham v. State, 40 Ala. 659. Iowa. State v. Tennery, 9 Iowa 436. by setting fire to adjoining buildings,33 or by setting fire to a building in which personal property charged to have been burned is stored,34 or by setting off an explosive where the building is set on fire as a result,35 or by the indirect use of something that will ignite from its own nature.36 Blowing up a house is made arson by statute in Texas.37 § 387. Time. At common law the offense was the same whether the burning was by night or by day,38 and the same is true under some of the statutes.39 But some of the statutes make it arson in a higher degree, or provide a more severe punishment when the offense is committed in the nighttime. 40 Massachusetts. Com. v. Andrews, 155 Mass. 68, 28 N. E. 1124. Tennessee. Crow v. State, 136 Tenn. 333, 189 S. W. 687, 1 A. L. R. 1160. Texas. Smith v. State, 23 Tex. App. 357, 5 S. W. 219, 59 Am. Rep. 773. And see State v. Johnson, 19 Iowa 230. But some part of the building must be burned. See § 385, supra. 33 Alabama. Grimes v. State, 63 Ala. 166. California. People v. Hiltel, 131 Cal. 577, 63 Pac. 919. Kentucky. Combs v. Com., 93 Ky. 313, 20 S. W. 221. Maine. State v. Watson, 63 Me. 128; State v. Hill, 55 Me. 365. Michigan. People v. Fairchild, 48 Mich. 31, 11 N. W. 773. Minnesota. State v. Grimes, 50 Minn. 123, 52 N. W. 275. New York. Woodford v. People, 62 N. Y. 117; Hennessey v. People, 21 How. Pr. 239. North Carolina. State v. Laughlin, 53 N. C. (8 Jones L.) 354. Oregon. State v. Roberts, 15 Ore. 187, 13 Pac. 896. Wisconsin. Lacy V. State, 15 Wis. 13. As to the necessary intent in such cases, see § 390, infra. That a person may be guilty of arson under such circumstances though he owns or occupies the building first set on fire, see § 382, supra. 34 Com. v. Andrews, 155 Mass. 68, 28 N. E. 1124. 35 See Landers v. State, 39 Tex. Cr. 671, 47 S. W. 1008. 36 State v. Lockwood, 1 Boyce (24 Del.) 28, 74 Atl. 2. A person may be convicted of burning a gin house where he puts matches in unginned cotton with the intention or expectation that they will be ignited by the process of ginning, and they are so ignited and the building is burned in consequence. Overstreet v. State, 46 Ala. 30. 37 Landers v. State, 39 Tex. Cr. 671, 47 S. W. 1008. 38 Curran's Case, 7 Gratt. (Va.) 619. See also § 375, supra. 39 State v. Tennebom, 92 Iowa 551, 61 N. W. 193; Com. v. Uhrig, 167 Mass. 420, 45 N. E. 1047. 40 See the statutes of the various states and the following cases: Iowa. State v. Tennebom, 92 Iowa 551, 61 N. W. 193. Kansas. State v. Nolan, 48 Kan. 723, 29 Pac. 568, 30 Pac. 486. |