§ 2. If any free person, in the day time, maliciously burn the dwelling-house of another, or any jail or prison, or maliciously set fire to any building or other thing, by the burning whereof such dwelling-house, jail or prison shall be burnt, he shall be confined in the penitentiary not less than three nor more than ten years. (Acts 1847-8, p. 99, § 2.)

§ 3. No out-house, not adjoining a dwelling-house, nor under the same roof, (although within the curtilage thereof,) shall be deemed parcel of such dwelling-house within the meaning of this chapter, unless some person usually lodge therein at night." (Id. § 3.)

5 An indictment for arson, according to the form at common law, is sufficient in a case of arson in the day time; yet it is more appropriate to charge the burning in the day time. To convict of the offence of burning at night, it seems, the indictment must charge the burning in the night. Curran's case, 7 Gratt. 619.

The indictment charges the setting fire to and burning the dwelling-house of E. on the 11th of Eebruary, 1850. The verdict is, guilty of arson in the day time, on the 11th of February, 1850. The verdict is sufficiently certain. Idem.

Quare. If the common law offence of arson is abolished? Idem.

6 A house, although it was built for a dwelling-house and had been used as such, and although it was about to be used as such again, yet having been unoccupied for ten months previous, and being unoccupied when it is burned, is not a dwelling-house within the meaning of this statute. Hooker v. Com., 13 Gratt. 763.

Where the prisoner was charged with burning a dwelling-house, and it appeared that the building burned was designed and built for a dwellinghouse; was constructed like one; was not painted, though designed to be, and some of the glass in an outer door had not been put in; it was held, that this was not a dwelling-house in such sense, that the burning of it would constitute the crime of arson. But the law is otherwise, with regard to a dwelling-house once inhabited as such, and from which the occupant is but temporarily absent. The State v. McGowen, 20 Conn. 245.

7 At common law, the offence was considered to reach 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. See Whart. Am. Crim. Law, § 1667; 2 Russ, on Cr. 552; Davis' Crim. Law 113-114; 1 Hale, 567, 570; 4 Black. Com. 221; 1 Hawk. ch. 39, § 1, 2; 3 Inst. 67, 69; 2 East. P. C. 1020.

§ 4. If a free person maliciously burn any meeting-house, court-house, town-house, college, academy or other building erected for public use, (except a jail or prison,) or any banking-house, ware-house, store-house, manufactory, or mill of another person, not usually occupied by persons lodging therein at night, or if he maliciously set fire to anything, by the burning whereof any building mentioned in this section shall be burnt, he shall be confined in the penitentiary, when such building, with the property therein, is of the value of one thousand dollars, not less than three nor more than ten years; and when it is of less value, not less than three nor more than five years. (1 R. C. p. 587, ch. 160, § 2. Acts 1847-'8, p. 99, § 4, 5.)

8

§ 5. If a free person maliciously burn any pile or parcel of wood, boards or other lumber, or any barn, stable, cowhouse, tobacco-house, stack of wheat, or other grain, or of fodder, straw or hay, he shall, if the thing burnt with the property therein be of the value of one hundred dollars, be confined in the penitentiary not less than three nor more than five years; and if it be of less value, he shall be so confined not less than one nor more than three years, or in the discretion of the jury, if the accused be white, or of the court, if he be a negro, in jail not more than one year, and be fined not exceeding five hundred dollars. (1 R. C. Id. § 3. Acts 1847-8, Id. § 6, p. 100.)

§ 6. If a free person maliciously burn any building,1o the burning whereof is not punishable under any other section of this chapter, he shall, if the building with the property

8 In the acts of 1847-'8, p. 100, ch. 4, § 6, and in the report of the revisors of the Code, p. 952, § 5, from which this section was taken, the word "corn-house" is found where in this section is inserted the word "cowhouse." This may be, and in all probability is, a typographical error in the Code.

> The malicious burning of wheat threshed from the straw is not in violation of this section. Erskine's case, 8 Gratt. 624.

1c The malicious burning by the owner of a house on his own land, the house being then in the legal occupancy of another, is in violation of this act. Idem.

ch. 160, § 2, 4.

therein be of the value of one hundred dollars or more, be confined in the penitentiary not less than three nor more than ten years; and if it be of less value, be so confined not less than one nor more than three years, or in the discretion of the jury, if the accused be white, or of the court, if he be a negro, in jail not more than one year, and be fined not exceeding five hundred dollars. (1 R. C. p. 587, Acts 1847-8, p. 99, § 7.) § 7. If a free person maliciously burn any bridge, lock, dam, or any ship, boat or other vessel, of the value of one hundred dollars or more, he shall be confined in the penitentiary not less than three nor more than ten years; and if the value be less than one hundred dollars, he shall be confined in jail not exceeding one year, and fined not exceeding two hundred dollars. (Acts 1826-7, p, 28, ch. 38, § 1; 1842-3, p. 64, ch. 95; 1847-8, p. 100, § 8.)

§ 8. If any free person unlawfully and maliciously set fire to any woods," fence, grass, straw or other thing capable of spreading fire on lands, he shall be fined not exceeding one hundred dollars, and confined in jail not less than two nor more than twelve months. Acts 1834-5, p. 46, ch. 65; 1847-8, p. 100, § 9.)

§ 9. If any free person intentionally set any woods on fire, whereby damage is done to the property of another, he shall be amerced at the discretion of a jury. (2 R. C. p. 313, ch. 253. Acts 1847-8, p. 100, § 10.)

§ 10. If a free person wilfully burn any building, or any goods or chattels, which shall be at the time insured against loss or damage by fire, with intent to injure the insurer, whether such person be the owner of the property or not, he

11 Indictment for unlawfully, wilfully and maliciously setting fire to the woods near the plantation of A M., and burning said woods and a fence belonging to said A. M., is described, in the record of the finding, as an indictment "for setting fire to the woods and burning the same:" Held, a sufficient record of the finding. Earhart v. Com., 9 Leigh 671.

shall be confined in the penitentiary not less than one nor more than ten years. (Acts 1847-8, p. 100, § 11.)

Burglary, larceny, embezzlement, &c.

§ 11. Any person who shall be guilty of burglary," shall be punished with death, or in the discretion of the jury, by confinement in the penitentiary for a period not less than five nor more than eighteen years. If a person break and enter the dwelling-house of another in the night time, with intent to commit larceny," he shall be deemed guilty of burglary, though the thing stolen or intended to be stolen be of less value than twenty dollars. (1 R. C. p. 617, ch. 171, § 5. Acts 1819-20, p. 18, ch. 20; 1847-8, p. 100, § 12; 1866, p. 90, ch. 25, § 1.)

§ 12. If a free person shall, in the night, enter without breaking, or shall, in the day time, break," or enter a dwell

12 Burglary, at common law, is the breaking and entering the dwellinghouse of another in the night, with intent to commit some felony within the same, whether the felonious intent be executed or not. Whart. Am. Crim. Law, § 1531; Davis' Crim. Law 145; 4 Black. Com. 224; 1 Russ. on Cr. 785. And it makes no difference whether the offence were felony at common law, or only created so by statute; since the statute, which makes an offence felony, gives it incidentally all the properties of a felony at common law. 4 Black. Com. 229; 1 Hawk. P. C. 105; 2 East. P. C. 511; 3 Greenl. Ev. § 82.

13 An indictment charging that goods were feloniously and burglariously taken from a dwelling-house, without charging that this was done in the night time, is not a good indictment for burglary, but is only an indictment for a larceny. Com. v. Marks, 4 Leigh 652, 660.

14 The word "break," in this section of the Code, (ch. 192, § 12,) is borrowed from the law in regard to burglary, and is to be understood as it would be when used in a charge of burglary. Finch v. Com., 14 Grat, 643.

An entry into a dwelling-house in the day time, through a door that was so closed that it came within the casing, and to open which required some degree of force, constitutes in law a breaking; though there was no fastening of any other kind on the door. Idem.

In Regina v. Bird, 9 Car. & Payne 44, 38 Eng. C. L. R. 29, the glass of a window had been cut, but every portion of the glass remained in its place until the prisoner pushed it in. This was held to be a breaking. In Regina

ing-house, or an out-house adjoining thereto and occupied therewith, or shall, in the night time, enter without breaking, or break and enter either in the day time or night time, any office, shop, store-house, ware-house, banking-house, or other house, or any ship or vessel, within the jurisdiction of any county, with intent to commit murder, rape or robbery, he shall be confined in the penitentiary not less than three nor more than ten years. (Acts 1857-8, ch. 32, p. 40, § 1. 1 R. C. p. 588, § 7; 2 R. C. p. 133-4, ch. 219, § 1. Acts 1847–8, p. 100, § 13. C. V. ch. 192, § 12.)

§ 13. If a free person do any of the acts mentioned in the prceding section, with intent to commit larceny or any felony other than murder, rape or robbery, he shall be confined in the penitentiary not less than one nor more than ten years, or at the discretion of the jury if the accused be white, or of the court if he be a negro, be confined in jail not less than one nor more than twelve months, and in the latter case, may also be punished, at the discretion of the court, with stripes. (1 R. C. p. 588, § 7. Acts 1847-8, p. 101, § 14.)

v. Hyams et als., the raising of a window not fastened, though it had a hasp by which it might have been fastened, was held to be a breaking. 7 Car. & Payne 441. Lifting up the flap of a cellar, which is kept down by its own weight, has been held, after some difference of opinion, to be a breaking. 2 Arch. Cr. Pl. & Ev. 336, Waterman's notes. "These and other cases of like kind," said Samuels J. in Finch's case, supra, "indicate the rule in our P. 646.

case.

The breaking of the house may be actual, by the application of physical force, or constructive, where an entrance is obtained by fraud, threats or conspiracy. See 3 Greenl. Ev. § 76, 77, and Roscoe's Crim. Ev. 340-346, and cases cited.

The fact of breaking a closed door may be inferred from evidence that it was found open in the morning, and that marks of violent forcing were found upon it. Com. v. Merrill, Thacher's Crim. Cas. 1.

An indictment which charges a breaking into a house with intent to steal, and the stealing therefrom, is an indictment for house-breaking, and not for larceny; and is good. Speers v. Com., 17 Gratt. 570; Vaughan v. Com., Ibid, 576; Com. v. Hope, 22 Pick. R. 1.

In such indictment, if the actual larceny is properly stated, the prisoner may be found guilty of the larceny, though acquitted of the house-breaking. Vaughan v. Com., supra.