The character of those offences which were felonies at com. mon law, are not necessarily changed by the fact that the punishment imposed by our statute is less than imprisonment in a State's prison, if there is no enactment reducing it below the grade of felony. Thus, in the Peo. v. Adler (2 Park. Cr. R., 254), it was said: By the common law the crime of petit larceny is a felony. (1 Hale P. C., 530; 1 Hawk., P. C., 146.) It was supposed by the court below that the Revised Statutes have reduced the offence to a misdemeanor. There are only two questions of the statutes which have a bearing on the question. By 2 Revised Statutes (p. 690, § 1) it is declared: "That every person who shall be convicted of stealing, taking, and carrying away the personal property of another of the value of twenty-five dollars, or under, shall be adjudged guilty of petit larceny." Section thirty (p. 702) provides that "the term felony, when used in this act or in any other statute, shall be construed to mean an offence for which the offender, on conviction, shall be liable by law to be punished by death or by imprisonment in a State prison." It will be observed, that the definition of the latter section applies only when the word is used in a statute, and that the former section does not use the word, and is silent as to the grade of petit larceny. The common law rule, that petit larceny is a felony, therefore appears to be untouched, and to remain in force in respect to all questions controlled solely by the common law.1 But petit larceny is not to be deemed a felony under the provision of 2 R. S., 701, § 23, declaring that no conviction for an offence other than felony shall disqualify a witness. Thus, in Carpenter v. Nixon, 5 Hill, 260, NELSON, Ch. J., says, it is provided by statute (2 R. S., 586, § 23, 2d ed.), that "no person sentenced upon a conviction for a felony shall be competent to testify, etc., unless he be pardoned by the Governor or by the Legislature, except in the cases specially provided by law, but no sentence upon a conviction for any offence other than a felony shall disqualify or render any person incompetent to be sworn, or to testify, etc. At common law petit larceny was a felony, and the offender an incompetent witness after conviction and sentence. In the case of Ward v. The People (3 Hill, 395), Vide Ward v. The Peo., 3 Hill, 395; Carpenter v. Nixon, 5 Id., 260; Ward v. The Peo., 6 Id., 144. False tokens and pretences-obtaining money by. (Id., 677, § 55; amended Laws of 1851, 268, ch. 144.) Forgery. (2 R. S., 675, § 42.) of railroad tickets. (Laws 1855, ch. 499, §§ 4, 5.) Fradulent issuing and sale of bonds of incorporated companies by officers, &c. (Laws of 1855, 236, ch. 155, § 1.) of joint stock companies and corporations. (Id., § 2.) Gamblers, and inveigling to gaming houses. (Laws 1851, ch. 504; amended by Laws 1855, ch. 214.) Incest. (2 R. S., 688, § 12.) Injuries to railroads. (Laws of 1838, 126, ch. 160.) Kidnapping. (2 R. S., 664, § 30; 665, §§ 33, 34.) Larceny. (Id., 679, §§ 65, 66.) Larceny from the person. (Laws 1862, ch. 374, § 2.) Larceny of railroad tickets. (Laws 1855, 914, ch. 499.) Misapplication of moneys received under bounty law. (Laws 1864, ch. 72, § 3.) Masquerades in New York and Brooklyn. (Laws 1829, ch. 270; amended 1858, ch. 359.) Receiving property embezzled, in upwards of $25 in value. (Id., 678, § 63.) Receiving stolen goods. (Id., 680, § 73.) Robbery. (Id., 678, § 57.) Second offences. (Id., 699, §§ 8, 9. Second offence, endeavoring to conceal death of child. (2 R. S., 694, § 23.) Seduction, under promise of marriage. (2 R. S., 664, § 26; Laws of 1848, 148, ch. 111; 1849, 577, ch. 420, § 3.) Selling counterfeit notes. (2 R. S., 672, § 32.) Severing from the soil produce, &c., upwards of $25 in value. (Id., 680, § 70.) Sodomy. (Id., 689, § 20.) Subornation of perjury. (Id., 681, §§ 2, 4.) Substituting child. (Id., 676, § 54.) Steamboat and steamship tickets-fraudulent sale of, in counties of New York, Albany and Erie. (Laws 1860, ch. 103, p. 177. State officers making false estimates, certificates, &c., of work on canals. (Laws 1854, ch. 329, § 12.) Salt works-destroying. (Laws 1859, ch. 346.) Salt works-counterfeiting, and assisting in counterfeiting brands of superintendent. (Id.) Threatening letters. (2 R. S., 678, § 60.) Total erasure, &c., of instruments. (Id., 675, § 43.) Treason. (Id., 656, § 2.) Uttering counterfeits. (Id., 674, §§ 39, 40.) Uttering instrument made in one's own name, as that of another person of the same name. (Id., 674, § 41.) Violating graves, &c. (Id., 688, §§ 13-15.) Voting at election by non-resident of the State. (Laws 1839, ch. 389, p. 365, § 14.) Violation of Registry Law. (Laws 1859, ch. 380, p. 895, § 14.) I. ARSON. Arson was at the common law an offence of the degree of felony, and has been described as the malicious and willful burning the house of another.1 This offence, at common law, was considered as one of great malignity, and pernicious to the public, and was punishable with death. It is frequently more destructive than murder itself, of which, too, it is often the cause, since murder, as atrocious as it is, seldom extends beyond the felonious act designed; whereas fire too frequently involves in the common calamity persons unknown to the incendiary, and not intended to be hurt by him, and friends, as well as enemies.2 In this State, the crime of arson has been divided into degrees, and has been extended by statute from the burning of a human habitation, so to embrace the burning of other descriptions of property not involving danger to human life. The following comprises the statutory definition of the various grades of arson, as created by our statute: (a) First Degree.-Arson in the first degree consists in willfully setting fire to or burning in the night time a dwellinghouse, in which there shall be at the time some human being, and every house, prison, jail, or other edifice, which shall have been usually occupied by persons, lodging therein at night, shall be deemed a dwelling-house of the person lodging therein.3 But no warehouse, barn, shed, or other outhouse, shall be deemed a dwelling-house, within the meaning of the last section, unless the same be joined to, immediately connected with and part of a dwelling house.1 12 Russ on Cr., 548; 3 Inst., 66; 1 Hale, 566; 1 Hawk. P. C., ch. 39; 4 Black. Com., 220; 2 East. P. C., ch. 21, § 1. A knowledge that the building was occupied with human beings lodging there, either habitually or at the time, is immaterial. A design to produce death is not necessary to constitute the offence of arson in the first degree, either at common law or under the statute.1 It was held in the Supreme Court, that a person cannot be convicted of arson in the first degree in setting fire to his own house; but he may be convicted of arson in the third degree in burning his own dwelling-house; but the offence is still against the property of another; the object of the crime being to defraud the insurer, who is interested in the preservation of the property. And the rule also was at the common law, that if the mischief was done but to one's own house it did not amount to a felony, but firing one's own house in a town was a high misde demeanor. But the Court of Appeals subsequently overruled the decisions of the Supreme Court, and held that arson in the first degree, under our statute, might be committed by one in burning his own house." (b) Second Degree.-Every person who shall willfully set fire to or burn any inhabited dwelling-house in the day time which, if committed in the night time, would be arson in the first degree, shall, upon conviction, be adjudged guilty of arson in the second degree.5 So, also, every person who shall willfully set fire to or burn in the night time any shop, warehouse, or other building not being the subject of arson in the first degree, but adjoining to, or within the curtilage of any inhabited dwelling-house, so that such house shall be endangered by such firing, shall, upon conviction, be adjudged guilty of arson in the second degree. The question as to what comprises a building within the curtilage of an inhabited dwelling-house, will be found stated in the subsequent section upon burglary.7 1 1 Peo. v. Orcutt, 1 Park., 252; 2 Russ. on Cr., 252. Peo. v. Henderson 1 Park., 560; Peo. v. Gates, 15 Wend., 159. 4 Blac. Com., 221. Vide Peo. v. Bush, 4 Hill, 133; 6 East., 464; Holme's Case, Cro. Cas., 376. Shepherd v. Peo., 19 N. Y. (5 Smith), 537. • Id., § 2. 7 Vide post. (c) Third Degree.-Every person who shall willfully set fire to or burn in the day time any shop, warehouse or other building, which, if committed in the night time, would be arson in the second degree, shall, upon conviction, be adjudged guilty of arson in the third degree.1 So, also, every person who shall willfully set fire to and burn ⚫ in the night time the house of another not the subject of arson in the first or second degree, any house of public worship, or any school house, any public building belonging to the people of this State, or to any county, city, town, or village, or any building in which shall be deposited the papers of any public officer, or any barn, or grist mill, or any building erected for the manufactory of cotton or woolen goods, or both, or paper, iron, or any other fabric, or fulling mill, or any ship, or vessel, shall, upon conviction, be adjudged guilty of arson in the third degree.2 So, also, every person who shall willfully burn any building, ship, or vessel, or any goods, wares, merchandise, or other chattel, which shall at the time be insured, whether the same be the property of such person or another, shall, upon conviction, be likewise adjudged guilty of arson in the third degree.3 (d) Fourth Degree.-The following offenders are guilty of arson in the fourth degree: 1st. Every person who shall in the day time willfully set fire to, or burn any dwelling-house or building, ship or vessel, which, if committed in the night time, would be arson in the third degree. 2d. Every person who shall, in the day or night time, willfully set fire to, or burn any saw mill, any carding machine, or building containing the same, any stack of grain of any kind, or any stack of hay, not being the property of such person, any toll bridge or any other public bridge. 3d. Every person who shall willfully set fire to, or burn in the day or in the night any crop of grain, growing or standing in the field, or any nursery or orchard of fruit trees belonging to another, or any fence around any cultivated field belonging to another, or the woods in any town not belonging to himself, or any grass or herbage growing on any marshes or other lands not belonging to himself.4 12 R. S., 667, § 3. . Id., § 5. " Id., § 4. |