against the other if his own negligence contributed to the result. A careless man is not allowed to complain of another no worse than himself. See Vol. I. Laws. Lead. Cas. Simp. 233. Longbottom's case is important as showing that this rule does not obtain in the criminal law.

CHAPTER V.

OFFENSES AGAINST THE PROPERTY OF INDIVIDUALS.

ARSON "DWELLING HOUSE.”

STATE v. MCGOWAN.

[20 Conn. 245.]

Mr. Warner, having succeeded in possessing himself of a moderate share of this world's goods, concluded to build himself a home. He engaged an architect, and after numerous consultations and changes of plans, followed by many broken promises on the part of the contractors, the house one October evening was nearly finished. All that was to do was to paint it, and to put in the glass above the front door. Mr. Warner was destined never too occupy it, for on the night of which I speak, a workman who had been discharged for drunkenness and incapacity took his revenge by building a bonfire in the cellar, which burned the house to the ground.

The workman was arrested and tried for arson. But the court decided that he was not guilty of this offense, because the house was not a dwelling-house, in such a sense that to burn it was arson. "In shape and purpose," said Chief Justice Church, "it was a dwelling

house but not in fact; because it had never been dwelt in; it had never been used, and was not contemplated as then ready for the habitation of man. Arson, as understood at the common law, was a most aggravated felony, and of greater enormity than any other unlawful burning, because it manifested in the perpetrator, a greater recklessness and contempt of human life than the burning of any other building, and in which no human being was presumed to be."

Arson at common law is the malicious burning of another man's house, intending at the time to do so. It was a very serious offense; for the law regarded it as an extremely grave matter to violate the safety or the sanctity of a person's abode in this manner. From the definition just given it will be seen that there are four elements in the crime.

1. It must be malicious. To carelessly drop a match or throw a spark in a man's residence which results in a conflagration is not

arson.

2. It must be the dwelling-house of another. Being an offense against the security of the habitation, the subject of the crime must have been, at common law, a "dwelling "—i.e., a place where somebody lived. This word, however, includes all outhouses and structures so near the house as to be in danger of taking fire from them if a fire should be started there. It seems that somebody should live there, for if a house be standing uninhabited and alone it is not arson to set it on fire; yet a house may be occupied although no person is in it at the time. In a Georgia case the court said: "Where a man or a man and his family, or a woman, or a woman and her family are living in a dwelling-house and have their household effects or valuable articles in such dwelling-house, and are temporarily absent at church or on a visit to a neighbor or on business, and the dwelling-house is burnt during such temporary absence, it is the burning of an occupied dwelling-house under the meaning of the statute, although no one was in the dwelling-house at the time it was burnt. The object of this statute is to protect the home of the occupants of a dwelling-house and their property therein from the torch of the incendiary, and it is none the less their home, their dwelling-house, because temporarily absent therefrom Johnson v. State, 48 Ga. 116.

The "home of another" is not a house owned by another, but one occupied by another. Therefore the owner of a building living there, or a tenant, does not commit arson in setting fire to it; but the owner does if another occupies it at the time.

By statute in many of the States it has been made arson to set fire to a store, warehouse, or other building, or a ship, as much as a "dwelling-house."

The house must be burned. But it is not even necessary that there should be a flame. The least burning fills the bill. It is enough that the wood is simply charred (State v. Sandy, 3 Ired. (L.) 574); or that only a portion of a door is burned, as in the case of the North Carolina convict. State v. Mitchell, post. Mr. John Haggerty of San Francisco in order to destroy an enemy's house set fire to some rags on the floor on which he had poured a good deal of kerosene. There was more smoke than fire, in consequence of which the thing was discovered, but not before much harm was done. A little spot on the floor was blackened; some of the witnesses thought the fibres of the wood burned; others thought it only smoked. Mr. John Haggerty urged that if he was guilty of anything it was only of an attempt to commit arson, as there had been no burning to speak of. But the court held that there had been enough to make him guilty of arson. People v. Haggerty, 46 Cal. 354.

4. The burning must be intentional. In other words, when the party does the act which causes the fire he must intend to burn the house. It is not sufficient (as it is in some other crimes) that the crime shall have been the result of some other crime. The ship Zeminder was lying at an Irish port laden with rum, sugar, and cotton. There is a tradition that sailors have a weakness for the first two articles of her cargo, and so it is not strange to hear that Seaman Faulkner, in the dead of night, might have been seen stealthily boring into one of the barrels of rum with a gimlet. When he had got enough he tried to stop up the hole, and was obliged to light a match to do so. The rum caught fire and the ship was destroyed. That so great a loss should come in this way was enough provocation to the owner to have the sailor indicted for arson. But the court held him not guilty. He had intended to steal the rum it was true; but he had not intended to set the ship on fire - that was an unintentional accident.

Another case, somewhat similar, arose on this side of the water. A prisoner in a North Carolina jail set fire to his door in order to burn off the lock and give him a chance to get free. The guards,

however, discovered him before the fire had quite consumed the door, and he was subsequently indicted for arson in burning the jail. But the court held that if his intent in building the fire under the lock was not to destroy the jail, but simply to effect his escape, he was not guilty of arson. State v. Mitchell, 5 Ired. (L.) 350.

But if a man intending to set fire to the house of A., accidentally sets fire to the house of B., the crime is complete — for he has intended arson all the time.