of divine worship, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement.-24-25 Vict., ch. 97, s. 1, Imp.

As to sureties for the peace, see sect. 74, post. As to solitary confinement, see 32-33 Vict., ch. 29, s. 94, Procedure Act of 1869.

Indictment. The jurors for Our Lady the Queen, upon their oath present that J. S. on the ...... in the feloniously, unlawfully and maliciously did at ......in the .... against against the and provided, and Queen, her crown

year
set fire to a certain church, situate
parish of ...... in the district of
form of the Statute in such case made

against the peace of Our Lady the
and dignity.

Though it is not necessary to prove malice against the owner, yet the indictment must allege the act to have been done "unlawfully and maliciously." If a Statute makes it criminal to do an act unlawfully and maliciously, an indictment must state it to have been done so : stating that it was done feloniously; voluntarily and maliciously is not enough.-1 Mood. 239, Rex. vs. Turner; 2 Russel, 1062, R. vs. Lewis.

The definition of arson at common law is as follows: Arson is the malicious and wilful burning the house of another, and to constitute the offence there must be an actual burning of some part of the house, though it is

not necessary that any flames should appear. -3 Burn's Just. 768. But now the words of the Statute are set fire to, merely; and, therefore it is not necessary in an indictment to aver that the house was burnt, nor need it be proved that the house was actually consumed. But within the Statute, as well as at common law, there must be an actual burning of some part of the house; a bare intent or attempt to do it is not sufficient. But the burning or consuming of any part of the house, however trifling, is sufficient, although the fire be afterwards extinguished. Where on an indictment it was proved that the floor of a room was scorched: that it was charred in a trifling way: that it had been at a red heat but not in a blaze, this was held a sufficient burning to support the indictment. But where a small faggot having been set on fire on the boarded floor of a room, the boards were thereby scorched black but not burnt, and no part of the wood was consumed, this was held not sufficient. -Archbold, 509.

The time stated in the indictment need not be proved as laid if the offence be proved to have been committed at any time before or after, provided it be some day before the finding of the indictment by the grand jury, it is sufficient. Where the indictment alleged the offence to have been committed in the night time and it was proved to have been committed in the day time, the judges held the difference to be immaterial. The parish is material, for it is stated as part of the description of the house burnt. Wherefore, if the house be proved to be situate in another parish, the defendant must be acquitted, unless the variance be amended. If a man intending to commit a felony, by accident set fire to another's house, this, it should seem, would be arson. If intending to set fire to the house of A. he accidentally set fire to that of B,, it is

QQ

felony. Even if a man by wilfully setting fire to his own house, burns also the house of one of his neighbour, it will be felony for the law in such a case implies malice, particularly if the party's house were so situate that the probable consequence of its taking fire was that the fire would communicate to the houses in its neighbourhood. And generally, if the act be proved to have been done wilfully, it may be inferred to have been done maliciously, unless the contrary be proved.-Archbold, 508.

It is seldom that the wilful burning by the defendant can be made out by direct proof: the jury, in general, have to adjudicate on circumstantial evidence. Where a house was robbed and burnt, the defendant's being found in possession of some of the goods which were in the house at the time it was burnt, was admitted as evidence tending to prove him guilty of the arson. So where the question is whether the burning was accidental or wilful, evidence is admissible to show that on another occasion, the defendant was in such a situation as to render it probable that he was then engaged in the commission of the like offence against the same property. But on a charge of arson, where the question was as to the identity of the prisoner, evidence that a few days previous to the fire in question, another building of the prosecutor's was on fire and that the prisoner was then standing by with a demeanour which showed indifference or gratification, was rejected. Archbold, 509.

Upon an indictment for any offence mentioned in this chapter (except the attempts specially provided for as such) the jury may, under s. 49, 32-33 Vict., ch. 29, (Procedure Act, 1869) convict the prisoner of an attempt to commit the same, and thereupon he may be punished in the same manner as if he had been convicted on an indictment for such attempt. 2 Russell, 1054.

SETTING FIRE TO A DWELLING-HOUSE, ANY PERSON BEING THEREIN.

Sect. 2.-Whosoever unlawfully and maliciously sets fire to any dwelling-house, any person being therein, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary con finement.-24-25 Vict., ch. 97, s. 2, Imp.

This offence was formerly punishable with death.

As to solitary confinement, see Procedure Act of 1869, sect. 94.

As to requiring the offender to enter into a recognizance and give sureties for the peace, see sect. 74, post.

As to verdict for an attempt to commit the offence charged upon an indictment for the offence, see Procedure Act, of 1869, sect. 49.

Indictment..... feloniously, unlawfully and maliciously did set fire to a certain dwelling-house of J. N. situate in the parish of .... in the district of...... one J. L. and M. his wife then, to wit, at the time of the committing of the felony aforesaid, being in the said dwelling-house; against the form ...

In this section, no mention is made of the intent with which the act is done; and it seems it is not necessary to show that the prisoner knew that any person was in the house. It must be shown that some one was in the house at the time the house caught fire; and where a person was in a house at the time the prisoner set fire to an outhouse, but left the house before the fire reached it, it was held that the offence was not proved within this section.-Reg. vs. Warren, 1 Cox, 68; Reg. vs. Fletcher, 2 C. & K. 215.

Under the Repealed Statute, a common gaol was held to be a dwelling-house, Donnavan's case, 1 Leach, 69; but a mere lock-up where persons are never detained more than a night or two was held not to be a house. -Reg. vs. Connor, 2 Cox, 65.

A building intended for a dwelling-house but used as a place to deposit straw, etc., is neither a house, outhouse nor barn.-Elsmore vs. St. Briavels, 8 B. & C. 461. A dwelling-house must be one in which a person dwells, Reg. vs. Allison, 1 Cox, 64; but temporary absence is not sufficient to take the building out of the protection of the statute.-Reg vs. Kimbrey, 6 Cox, 464. A building not intended for a dwelling-house, but slept in by some one without the leave of the owner, and a cellar under a cottage separately occupied, were held not to be houses.-Reg. vs. England, 1 C. & K. 533; Anon. 1 Lew. 8.

What is understood by the house? This extends at common law not only to the very dwelling-house, but to all out-houses which are parcel thereof, though not adjoining thereto, nor under the same roof.-2 East P. C. 1020.

SETTING FIRE TO A HOUSE, OUT-HOUSE, MANUFACTORY,

FARM-BUILDING, ETC., ETC.

Sect. 3.-Whosoever unlawfully and maliciously sets fire to any house, stable, coach-house, out-house, warehouse, office, shop, mill, malt-house, hop-oast, barn, storehouse, granary, hovel, shed or fold, or to any farmbuilding, or to any building or erection used in farming land, or in carrying on any trade or manufacture, or any branch thereof, whether the same is then in the possession of the offender, or in the possession of any other person, with the intent thereby to injure or defraud any person, is guilty of felony, and shall be liable to be imprison