Ownership of the build. ing. Variance in proof of fire is applied so as to take effect upon the substance of the building. People v. Butler, 16 Johns., 203; Commonwealth v. Van Schaack, 16 Mass., 105; State v. Sandy, 5 Ired., 570; Reg. v. Parker, 9 Carr. & P., 45; Reg. v. Russel, 1 Carr. & M., 541. See also, Hester v. State, 17 Geo., 130; State v. De Bruhl, 10 Rich. Law, 23. S526. To constitute arson it is not necessary that another person 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 the possession of, or was actually occupying, such building, or any part thereof. People v. Van Blarcum, 2 Johns., 105; Shepherd v. People, 19 N. Y. (5 Smith), 537; State v. Taylor, 45 Me., 322. At common law arson was the maliciously burning the house of another. East P. C., 1015. And one could not be convicted of arson in burning his own house. Rex v. Pealey, Leach C. C., 277; Rex v. Breeme, Id., 261; Rex v. Spalding, Leach C. C., 248. The offense of burning insured property with intent to defraud the insurers. is provided for in chapter IX. of this title. S527. An omission to designate, or error in desigownership. nating in an indictment for arson, the owner or occupant of a building, shall not prejudice the proceedings thereupon, if it appears that upon the whole description given of the building, it is sufficiently identified to enable the prisoner to prepare his defense. What constitutes malice. Compare Martha v. State, 26 Ala., 72; State v. S528. Malice sufficient to constitute arson is inferred from proof that the prisoner committed an act of burning a building, and that some other person was rightfully in possession of, or actually occupying any part thereof. It is not necessary that the accused should have had actual knowledge of such possession or occupancy, or should have intended to injure another person. Rex v. Farrington, Russ. & Ry. C. C., 207; People v. Van Blarcum, 2 Johns., 105; People v. Orcutt, 1 Park. Cr., 252; People v. Henderson, Id., 563; Jesse v. State, 28 Miss., 100. In Reg. v. Regan (4 Cox Cr. Cas., 335), destroy the S529. But the burning of a building under circum- Intent to stances which shows beyond a reasonable doubt that building there was no intent to destroy it, is not arson. People v. Cotteral, 18 Johns., 115. State v. Mitchell, 5 Ired., 350. requisite. buildings. S530. Where any appurtenance to any building is Contiguous so situated with reference to such building, or where any building is so situated with reference to another building that the burning of the one will manifestly endanger the other, a burning of the one is deemed a burning of the other, within the foregoing definition of arson, and as against any person actually participating in the original setting fire, as of the moment when the fire from the one shall communicate to aud burn the other. Robert's case, 2 East P. C., 1030; Isaac's case, S531. Arson is distinguished into four degrees. Degrees of arson. defined. S532. Maliciously burning in the night time an First degre inhabited building, in which there is at the time some human being, is arson in the first degree. Taken in con Founded upon 2 Rev. Stat., 657, § 9. S533. No warehouse, barn, shed, or other out- Appurtehouse, is a subject of arson in the first degree, unless buildings. nances to Burning in day time, in second it is immediately connected with, and forms part of, an inhabited building. Founded upon 2 Rev. Stat., 657, § 10. S534. Maliciously burning in the day time an in when arson habited building, in which there is at the time some human being, is arson in the second degree. degree. Burning in night time, in second degree. Substituted for 2 Rev. Stat., 666, § 1. $535. Maliciously burning in the night time a when arson building, not an inhabited building, but adjoining to or within the curtilage of an inhabited building in which there is at the time some human being, so that such inhabited building is endangered, even though it be not in fact injured by such burning, is arson in the second degree. Burning in day time, See Peverelly v. People, 3 Park. Cr., 59. S 536. Maliciously burning in the day time a buildwhen arson ing, the burning of which in the night time would be arson in the second degree, is arson in the third degree. in third degree. Burning in night time, in third degree. S537. Maliciously burning in the night time any when arson building, not the subject of arson in the first or second degree, including any house for public worship, school house, or public building belonging to the people of this state, or to any county, city, town or village, any building in which have usually been deposited the papers of any public officer, and any barn, mill or manufactory, is arson in the third degree. Fourth degree defined. Punish ment of arson Founded on 2 Rev. Stat., 667, § 4. S 538. Maliciously burning in the day time any building, the burning of which in the night time would be arson in the third degree, is arson in the fourth degree. Founded on 2 Rev. Stat., 667, § 7. $539. Arson is punishable by imprisonment in a state prison, as follows: 1. Arson in the first degree, for any term not less than ten years; 2. Arson in the second degree, not exceeding ten years and not less than seven years; 3. Arson in the third degree, not exceeding seven years and not less than four years; 4. Arson in the fourth degree, not exceeding four years and not less than one year; or by imprisonment in a county jail not exceeding one year. The above are the grades of punishment recently prescribed by statute, (Laws of 1862, ch. 197, §§ 7, 8,) as a substitute for the provisions of the Revised Statutes. Under those provisions arson was punishable, in the first degree, by death (2 Rev. Stat., 656, § 1); in the second degree by imprisonment in a state prison not less than ten years; in the third degree by like imprisonment not more than ten years and not less than seven; and in the fourth degree by like imprisonment not more than seven years and not less than two, or by imprisonment in a county jail not exceeding one year. (2 Rev. Stat., 667, § 9.) In view of the many and aggravated instances of this crime which have recently occurred, there seems reason to favor a return to the more stringent system of punishment prescribed by the former law. The commissioners have, however, presented the existing rules in the text, leaving the question of a restoration of those formerly in force, to the consideration of the legislation. CHAPTER II. BURGLARY AND HOUSEBREAKING. SECTION 540. Burglary in first degree defined. 541. Breaking into dwelling house in the day time, burglary in second degree. 542. Breaking inner door in night time, burglary in second de gree. 543. Such breaking by person lawfully in the house, burglary in second degree. 544. Breaking into dwelling house, when burglary in third de gree. 545. Other burglaries of the third degree. 546. Breaking and entering dwelling, when burglary in fourth degree. 547. Breaking out of dwelling house, burglary in fourth degree. Burglary in first degree defined. SECTION 548. Punishment of burglary. 549. Having possession of burglar's implements. 550. Entering buildings other than dwelling houses. 552. "Night time" defined. S540. Every person who breaks into and enters in the night time the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein, either: 1. By forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter; or, 2. By breaking in any other manner, being armed with any dangerous weapon, or being assisted or aided by one or more confederates, then actually present; or, 3. By unlocking an outer door by means of false keys, or by picking the lock thereof. Is guilty of burglary in the first degree. 2 Rev. Stat., 668, § 10. It has not been thought best to insert any definition of "breaking" or of "entering," but rather to leave the meanings of those words, now quite well settled, to adjudication. For cases on the subject, see Rex v. Cornwall, 2 Stra., 880; Rex v. Gray, 1 Id., 481; Rex v. Gibbons, Fost., 107; Rex v. Hughes, Leach C. C., 452; Reg. v. Davis, 6 Cox Cr. Cas., 367; Reg. v. O'Brien, 4 Id., 398; Reg. v. Meal, 3 Id., 70; Reg. v. Wenmouth, 8 Cox Cr. Cas., 483; Reg. v. Wheeldon, 8 Carr. & P., 747; Rex v. Paine, 7 Id., 135; Rex v. Jordan, 7 Id., 432; Reg. v. Bird, 9 Id., 44; Rex v. Hughes, 1 Leach C. C., 406; 2 East P. C., 491; Rex v. Lewis, 2 Carr. & P., 628; Rex v. Brown, 2 East P. C., 487; 2 Leach C. C., 1016; Rex v. Johnson, 2 East P. C., 488; Rex v. Bailey, Russ. & R. C. C., 341; 2 Russ. C. & M., 12; 1 R. & M. C. C, 23; Rex v. Perkes, 1 Carr. & P., 300; Rex v. Lawrence, 4 Carr. & P., 231; Rex v. Russell, 1 M. C. C. R., 377; State v. McCall, 4 Ala., 643; State v. Wilson, Coxe, 439; Commonwealth v. Steward, 7 Dane's Ab., 136; Com. v. Stephenson, 8 Pick., 354; People v. Boujet, 2 Park. Cr. Rep., 11; Commonwealth v. Trimmer, 1 Mass., 476; Finch's case, 14 Gratt., 643; Guche's case, 6 City Hall Rec., 1: Robertson's case, 4 Id., 63; Smith's case, Id., 62; People v. Tralick, Hill & D., 63; People v. Bush, 3 Park. Cr., 552. |