YOUNG GIRLS. In the case of very young girls the courts do not require the same proof of violent and continued resistance as in the case of mature and experienced women.1 149 CHARACTER OF THE WOMAN. The character of the woman is in rape of no conse quence, nor are the previous relations between the parties important. It is as much rape to have carnal knowledge of a prostitute by force and against her will as of the most virtuous of women.150 And it is also true that although a woman may have yielded to her ravisher on many previous occasions, yet if she resisted the act involved to the extent of her power, it is rape. The character of the woman and the previous relations between the parties are only regarded as circumstances, which may assist in determining whether in fact, on the occasion charged, there was that reluctance and resistance which is an essential ingredient in the crime of rape.151 149 Stephens vs. State, 11 Geo., 225; State vs. Niles, 47 Vt., 82; People vs. Lynch, 29 Mich., 274; Maillet vs. People, 42 Mich., 262; 3 Am. Cr., 379. 150 Anderson vs. State, 104 Ind., 467; 5 Am. Cr., 601. People vs. Crego, 70 Mich., 319; State vs. Reed, 39 Vt., 417; Carney vs. State, 118 Ind., 525. 13-1 ARSON. Arson at common law was the wilful, and malicious burning of the dwelling house of another. At common law a man's habitation was regarded as sacred. It was called his castle, and for its safety and security the law had an especial regard. The offense of arson is considered as one that violates the sanctity and the security of the habitation, and for this reason is a more atrocious offense than if it were viewed as simply a crime against property.1 DWELLING HOUSE. The term dwelling house in its legal sense includes not only the house occupied by the family for domestic purposes, but all the outhouses within the curtilage,2 being such buildings as burglary may be committed in at common law. In England the dwelling and outhouses were usually surrounded by a fence or stone wall enclosing a small piece of land embracing the yard and outbuildings near the house, constituting a court, and this enclosure was called the curtilage. Since such enclosures now are not common, the term now includes all buildings which, although not enclosed by a fence or wall, are part and parcel of the dwelling house and used in connection therewith.4 'Snyder vs. People, 26 Mich., 105. 'A barn eighty feet from the dwelling in a yard or lane with which there was a communication from the house by a pair of bars, was held to be within the curtilage. People vs. Taylor, 2 Mich., 251; Pitcher vs. People, 16 Mich., 142; People vs. Aplin, 86 Mich., 393; Com. vs. Barney, 10 Cush. (Mass.), 480; Washington vs. State, 82 Ala., 31. But if a highway separate the barn from the dwelling house, it is not within the curtilage. Curkendal! vs. People, 36 Mich., 309. Any building will be considered to be a dwelling within the intent of the law if it be actually occupied as such.5 The dwelling must be occupied, but it is not necessary that the person inhabiting it should be present at the time of the burning, provided it contains his effects and he intends to return after a temporary absence.6 The offense being one against the habitation, it follows that the burning of a vacant house does not violate the security of any one and is not arson at common law. Of course if the burning of a vacant house be done with the intent that the fire shall spread so as to burn the house of another, or under such conditions that the house of another would probably be burned, the crime is committed.7 The dwelling must be the habitation of another. At common law the ownership or occupancy of premises burned was material. The burning of one's own house, since it did not vio late the security of the habitation, was not arson at common law.8 This statement is subject to the limitation that if the setting fire to one's own house is done with the intent to burn the dwelling of another, or under such circumstances that the dwelling of another would probably be burned, then the offense of arson is committed. 'Com. vs. Barney, 10 Cush., 487. 'Stupetske vs. Fire Ins. Co., 43 Mich., 373; Johnson vs. State, 48 Ga., 116; State vs. Toole, 29 Me., 30. 'Woodford vs. People, 62 N. Y., 153; Hooker vs. Com., 13 Gratt. (Va.), 763; State vs. McGowan, 20 Conn., 245; State vs. Warner, 33 Me., 30; People vs. Handley, 93 Mich., 146. 'State vs. Hannet, 54 Vt., 83; 4 Am. Cr., 38. The occupant of a house is considered for the purpose of the crime of arson to be the owner. The house in the indictment is described, not as the house of the owner in fee (if he does not occupy it), but as the dwelling house of him whose dwelling it then is.9 At the common law the wife, because of her legal identity with the husband, could not be guilty of the crime of arson in burning her husband's dwelling. So, also, a house owned by the wife, but occupied by the husband and wife jointly, was not the dwelling of another, the burning of which by the husband would make him guilty of arson. BURNING. To constitute the crime there must be an actual burning of the house or some part of it, It is not necessary that the house be consumed or partially destroyed. It is sufficient if there is a burning, however slight.10 THE BURNING MUST BE WILFUL AND MALICIOUS. Mere negligence or mischance will not make one guilty of the offense.11 The malicious burning, however, need not in all cases be a result corresponding with the precise intent of the defendant. Thus if one intending to set fire to the house of A. should accidentally set fire to the house of B, he is guilty of arson. So, also, he will be guilty of the offense, al 'Snyder vs. People, 26 Mich., 105. 10A mere charring will suffice; Com. vs. Tucker, 110 Mass., 403; People vs. Haggarty, 46 Cal., 354. But a mere scorching is not enough; Woolsey vs. State, 30 Tex App., 346; 17 S. W. Rep., 546; State vs. Hall, 93 N. Car., 571. "Winslow vs. State, 76 Ala., 42; 5 Am. Cr., 43. though he had no intention of setting fire to anything, providing he accidentally sets fire to the dwelling of another in intending and attempting to commit a felony of a different nature. If, however, the dwelling be burned as an unintended result of an act or intent which would constitute an offense less than a felony, it would not constitute the crime of arson. STATUTORY BURNINGS. Most of the statutes of the various States make it an offense to burn one's own house, or for the wife to burn her husband's house, and vice versa. Many of the statutes also make it an offense to burn other buildings than the dwelling, such as school houses,12 shops, warehouses,13, churches,14 grist mills,15 and in some States the burning of any building is made punishable. There are also statutes punishing the burning of insured property with the intent to charge the insurer.16 BURGLARY. Burglary consists in the breaking, and entering, of the dwelling house of another, in the night-time, with intent to commit a felony therein. Burglary is one of the ancient common law crimes, and has always been regarded in our law as an atrocious crime. The English people have always regarded a man's dwelling as something specially sacred. It is his castle, where he may dwell in peace 13Wallace vs. Young, 5 I. B. Mon. Ky., 156; Hill vs. Commonwealth, 98 Pa. St., 192. 18 Allen vs. State, 10 Ohio St., 287; Grimes vs. State, 63 Ala., 166. "Hudson vs. State, 61 Ala., 33. 15 Garrett vs. State, 109 Ind., 527. 1 Heard vs. State, 81 Ala., 55; 7 Am. Cr., 74. |