ARSON (Lat. ardere, to burn.). The malicious burning of the house of another. Coke, 3d Inst. 66; Bishop, Crim. Law, 415 ; 4 Blackstone, Comm. 220; 2 Pick. Mass. 320 ; 10 Cush. Mass. 479 ; 7 Gratt. Va. 619; 9 Ala. 175 ; 7 Blackf. Ind. 168; 1 Leach, Cr. Cas. 4th ed. 218.
The house, or some part of it, however small, must be consumed by fire. 9 Carr. & P. 45 ; 16 Mass. 105 ; 5 Ired. No. C. 350. The question of burning is one of fact for the jury. 1 Mood. Cr. Cas. 398; 5 Cush. Mass. 427.
2. It must be another's house, 1 Bishop, Crim. Law, 389; but if a man sot fire to his own house with a view to burn his neigh bor's, and does fri, it is, at least, a great mis demeanor. 1 Hale, Pl. Cr. 568; 2 East, Pl. Cr. 1027 ; 5 Russ. & R. Cr. Cas. 487 ; W. Jones, 351 ; 2 Pick. Mass. 325 ; 34 Me. 428 ; 2 Nott & M'C. So. C. 36 ; 8 Gratt. Va. 624 ; 5 Barnew. & Ad. 27. See 1 Park. Cr. Cas. N. Y. 560; 2 Johns. N. Y. 105 ; 7 Blackf. Ind.' 168.
The house of another must be burned, to constitute arson at common law; but the term "house" comprehends not only the very man sion-house, but all out-houses which are parcel thereof, though not contiguous to it, nor under the same roof, such as the barn, stable, cow-house, sheep-house, dairy-house, mill-house, and the like, being within the cartilage, or same common fence, as the man sion itself. 1 Carr. & K. 533 ; 14 Mees. & W. Exch. 181; 4 Carr. & P. 245 ; 20 Conn. 245 ; 16 Johns. N. Y. 203 ; 18 id. 115 ; 3 Ired. No. C. 570; 3 Rich. So. C. 242; 5 Whart. Penn. 427; 4 Leigh, Va. 683 ; 4 Call. Va. 109. And it has
also been said tbat the burning of a barn, though no part of the mansion, if it has corn or hay in it, is felony at common law. 1 Gabbett, Crim. Law, 75 ; 4 Carr. & P. 245 ; 5 Watts & S. Penn. 385. In Massachusetts, the statute refers to the dwelling house strictly. 16 Pick. Mass. 161 ; 10 Cush, Mass. 478. And see 3 Story, U. S. Laws, 19, 99. The burning must have been both malicious and wilful. Roscoe, Crim. Ev. 272; 2 East, Pl. Cr. 1019, 1031 ; 1 Bishop, Crim. Law, 259. And gene rally, if the act is proved to have been done wilfully, it may be inferred to have been done maliciously, unless the contrary is proved. 1 Russ. & R. Cr. Cas. 26. On a charge of arson for setting fire to a mill, an intent to injure or defraud the mill-owners will be conclusively inferred from the wilful net of firing. 1 Russ. & R. Cr. Cas. 207 ; 1 Mood. Cr. Cas. 263 ; 2 Barnew. & C. 264. But this doctrine can only arise where the act is wil ful; and therefore, if the fire appears to be the result of accident, the party who is the cause of it will not be liable.
It is a felony at common law, and originally punishable with death, Coke, 3d Inst. 66 ; 2 East, Pl. Cr. 1015 ; 5 Watts & S. Penn. 385 ; but this is otherwise, to a considerable extent, by statute. 8 Rich. So. C. '276; 4 Dev. No. C. 305; 4 Call. Va. 109; 5 Cranch, C. C. 73. if homicide result, the act is murder. 1 Green, N. J. 361; 1 Bishop, Crim. Law, 361.