TITLE XIII. Of Crimes against Property. CHAP. I. ARSON, §§ 447-55. II. BURGLARY AND HOUSEBREAKING, §§ 459-63. IV. FORGERY AND COUNTERFEITING, §§ 470-82. VI. EMBEZZLEMENT, §§ 503-14. VII. EXTORTION, §§ 518-25. VIII. FALSE PERSONATION AND CHEATS, §§ 528-36. X. FRAUDULENTLY KEEPING POSSESSION OF XL FRAUDULENT DESTRUCTION OF PROPERTY IN- XII. FALSE WEIGHTS AND MEASURES, §§ 552-5. XIV. FRAUDULENT ISSUE OF DOCUMENTS OF TITLE XV. MALICIOUS INJURIES TO RAILROAD BRIDGES, PEN. CODE.-16. § 454. Arson of the first degree. Arson of the second degree. § 455. Punishment of arson. 447. Arson is the willful and malicious burning of a building, with intent to destroy it. Arson defined.-Arson is the willful and malicious burning of the house of another-51 Cal. 320; 12 Bush, 243; 5 Ired. 350; 18 Johns. 115: 12 Vt. 93; 11 Up. Can. C.P. 69. It is a crime against the security of the dwelling-house as such, and the possession, and not against the building as property-44 Cal. 494; 26 Mich. 106; 1 Green C. R. 547; 29 Conn. 342; see 52 Ala. 357; 12 Bush, 243; 3 Ired. 570; 2 Johns. 105; 61 Mo. 276; 19 N. Y. 537; 71 N. C. 88. The value of the property is not an element52 Ala. 345. Malice and willfulness are essential ingredients, and no negligence and mischance can make one guilty-28 Miss. 100; 49 Alas 27, although done in the pursuance of an illegal act-5 Ired. 350; unless in the commission of a felony-15 Ill. 516; but it is not necessary that there be a design to produce death-53 Miss. 384; 1 Parker Cr. R. 560; 15 Wis. 13. Malice implies an evil and malicious intent, however general-3 Chit. C. L. 1120; as, where the design is to burn one house and he burns another-32 Vt. 158; and the act which results in burning another's house need not be a felonious act-2 East P. C. 1030, 1031. The intent must be malicious-28 Miss. 100; 2 East P. C. 1033; or, to injure or defraud-32 Cal. 160; 37 id. 274; 78 N. C. 552; as, an insurance company-51 N. H. 176; 19 N. Y. 537; 1 Parker Cr. R. 560; and a possibility of fraud is sufficient-1 Whart. C. L. 8th ed. § 843. See generally, 114 Mass. 272; 28 Ala. 71; Russ. & R. C. C. 138; 4 Fost. & F. 1102. Though it need not be to injure or defraud any particular person-Law R. 1 C. C. 344. The intent may be inferred from the facts-51 Cal. 468; 52 Ala. 345; 51 Ga. 612; 63 Me. 128; 12 La. An. 382; 119 Mass. 354; 10 Met. 422; 41 Tex. 598; 47 Ill. 533; 2 Car. & K. 306; 5 Cox C. C. 138; Russ. & R. C. C. 209; and, in pursuance of the intent, to set fire to any combustible matter in the building is an offense at common law-Thach. C. C. 240. See Desty's Crim. Law, title ARSON. 448. Any house, edifice, structure, vessel, or other erection, capable of affording shelter for human beings, or appurtenant to or connected with an erection so adapte 4 is a “building," within the meaning of this chapter. The building.-Any edifice capable of affording shelter for human beings is a "building"-51 Cal. 320; 34 id. 245. It need not be a finished structure; it is sufficient if it is connected and entire-12 Cox C. C. 106; Law R. 1 C. C. 338; its state of completeness is a question of fact-1 Met. 258; 12 Cox C. C. 106; Law R. 1 C. C. 338; but the remains of a wooden house after a fire is not a building-32 Up Can. Q. B. 429; S. C. 1 Green C. R. 204. A church is a budding within the statute-1 Leach, 318; id. 320; or a schoolhouse-2 Root, 516; 4 Gill. & J. 402; 5 Mon. 156; or a building removed by a city, and fitted up for public use-2 Allen, 159: or a vessel-see Brown Adm. 156. In arson, house, shop, workshop, etc., have the same meaning as in cases of burglary-5 Up. Can. Q. B. (O. S.) 522. A warehouse means any building used as such at the time-10 Ohio St. 287. Where there are no interior communications between two parts of a house, the separately occupied parts are considered as separate buildings-29 Conn. 342. See Desty's Crim. Law, titles ARSON, BURGLARY. 449. Any building which has usually been occupied by any person lodging therein at night is an "inhabited building," within the meaning of this chapter. Habitation.-Any building is a dwelling-house which is wholly or in part usually occupied by persons lodging therein at night-1 Parker Cr. R. 252. Every house for dwelling and habitation is taken to be a mansion house-4 Ga. 339. House means not only the dwelling but all out-houses which are parcel thereof, such as barns and stables-3 Dutch. 323; 8 Jones (N. C.), 354; id. 455; id. 459; 63 N. C. 493; 4 Conn. 47; 4 Dev. & B. 185; 46 Ala. 30; 3 Rich. 242; 31 Me. 523; 2 Mich. 250; 5 Car. & P. 535; 13 Gratt. 763. A jail is an inhabited dwelling-18 Johns. 115; 41 Tex. 601; 4 Call. 109; 5 Ired. 350; 53 Ga. 33; contra, 49 Ala. 30; id. 33; 4 Leigh. 683; and see 22 Amer. Rep. 255. Where the entrance to a jail was through a dwelling-house, the entire structure is a house20 Conn. 245; 2 W. Black. 683. Curtilage means a court-yard or the space within any inclosure round a dwelling-house-10 Cush. 478, and includes a summer-house-Russ. & R. 69, and a barn with hay and grain in it-5 Watts & S. 385; 1 Moody C. C. 239; contra, 81 Ill. 565; or a barn communicating with the dwelling-2 Mich. 250; or a building thirty-six feet distant, used as a dormitory for the owner's servants-8 Mich. 150. 450. The phrase "night-time," as used in this chapter, means the period between sunset and sunrise. See sec. 463 and note. 451. To constitute a burning, within the meaning of this chapter, it is not necessary that the building set on fire should have been destroyed. It is sufficient that fire is applied so as to take effect upon any part of the substance of the building. The burning.-Burning is an essential ingredient of the crime-29 Ga. 105; 24 Ark. 44; 3 Ired. 570; 16 Johns. 203; 16 Mass. 105; 40 Ala. 659; 2 Term. Rep. 255; but the house need not be entirely consumed; it is sufficient if any part is burned-5 Ired. 350; 110 Mass. 403. The offense is complete, although the fire be put out, or go out of itself-5 Ired. 350; 3 id. 570; 16 Johns. 203; 16 Mass. 105. That something in the house was burned is not sufficient-40 Ala. 659; 1 Car. & M. 541. It is not essential that the woodwork of the house should blaze-Ryan & M. 398; 1 Car. & M. 541; if the wood be charred so as to destroy its fiber it is sufficient-46 Cal. 354; 50 id. 304; 3 Ired. 570; 5 id. 350; 18 Johns. 115; 110 Mass. 403; 1 Car. & M. 541; 9 Car. & P. 45. The sufficiency of the burning is a question of fact-5 Cush. 427. 452. To constitute arson it is not necessary that a person other than the accused should have had ownership in the building set on fire. It is sufficient that at the time of the burning another person was rightfully in possession of, or was actually occupying such building, or any part thereof. Ownership. It is not arson to burn one's own property-8 Gratt. 627; 2 Pick. 320; 12 Up. Can. C. P. 163, unless it be accompanied by an injury to or a design to injure some other person-2 Pick. 325; 5 Stewt. & P. 175; 2 East P. C. 1031; Cro. Car. 377; Cald. 397; but see 19 N. Y. 537; 51 N. H. 176; 12 La. An. 382. A husband cannot be guilty of arson in burning the house occupied by himself and wife-26 Mich. 106; S. C. 1 Green C. R. 547; nor a wife for setting fire to her husband's house1 Moody C. C. 182; but a person setting fire to a house in the city, the house being occupied by himself and other tenants, is a great misdemeanor-5 City I. Rec. 851; so, if the owner of a building set fire to it with intent to burn the adjoining property, he is guilty of arson-3 Rich. 242; 47 111. 533; or burning his house to injure an insurer-29 Cal. 257; 32 id. 160; 1 Parker Cr. R. 560; 2 La. An. 157; see 28 Ala. 71; Russ. & R. 138; 4 Fost. & F. 1102. The building must be the property of another, but such a possession as gives a special property while it exists is sufficient-12 Conn. 487; 2 Johns. 105. The tenure or interest in the building is not to be considered-52 Ala. 357; 2 Johns. 205, as mortgagor or mortgagee-1 Leach, 218; id. 242; id. 220; Cro. Car. 376; Cald. 397; see 7 Cold. 350. At common law a tenant cannot be indicted for willfully burning the house that he lives in-12 Conn. 487; 3 Dutch. 323; 3 Blackf. 485; 1 Leach, 218; id. 220; id. 242; id. 258; but under the statute a lessee may be guilty of arson for burning the property of the lessor or other property adjoining-50 Cal. 304; 19 N. Y. 537; 1 Parker Cr. R. 560; 5 Stewt. & P. 175; 10 Ohio St. 287; 61 Mo. 276; 2 East P. C. 1030; id. 1031. If the lessor, being the general owner, burns the property while occupied by the lessee, he is guilty-2 Johns. 105; 13 Conn. 487; 7 Blackf. 168; 29 Conn. 342; 8 Gratt. 635; 110 Mass. 503; 1 Moody C. C. 344. One entitled to dower may be guilty-5 Stewt. & P. 175; 8 Gratt. 624; 5 Barn. & Ald. 27; or a servant who usually dwells there while the legal possession is in another-2 Pick. 325; 2 East P. C. 1027; id. 1034; 1 Leach. 246; but a servant who sets fire to his master's house by his procurement is not guilty-66 Me. 307; 22 Amer. Rep. 569. 453. Arson is divided into two degrees. Degrees of arson-53 Cal. 627. 454. Maliciously burning in the night-time an inhabited building in which there is at the time some human being, is arson in the first degree. All other kinds of arson are of the second degree. Occupation.-Occupation is an essential element of the offense of arson-47 Ga. 572. So, an unfinished building not yet occupied is not within the purview of the statute-20 Ind. 242; id. 219; 20 Conn. 245; 45 N. Y. 153; 10 Cush. 478; 13 Gratt. 763; contra, í Met. 258; 4 Ga. 335; 4 Strob. 372. That it was intended for occupancy, or is capable of be ing occupied, is not sufficient-33 Me. 30; 31 id. 523; 3 Cush. 529; or if it was merely casually occupied-13 Gratt. 763; or if the occupants be absent without intent to return-10 Cush. 478; 13 Gratt. 763. But if the house is burned during a temporary absence, it is the burning of an occupied dwelling-48 Ga. 116; 33 Me. 30; see 31 id. 523; 3 Cush. 529; 10 id. 478; 20 Conn. 245. But it must be usually dwelt in-53 Miss. 384; or occasionally used-4 Ga. 342; and it is immaterial whether the person charged had knowledge of its occupancy-1 Parker Cr. R. 252. 455. Arson is punishable by imprisonment in the State prison, as follows: 1. Arson in the first degree, for not less than two years. 2. Arson in the second degree, for not less than one nor more than ten years. |