dwelling-house of Henderson, with all the right of entry possessed by a sole occupant.

The cases of constructive breaking by conspiracy are cases in which one of the conspirators is not the owner of the house, but a servant of the owner, or one having a bare charge and not actual possession thereof; where there is a bare charge, the person having such charge may open the door and enter at pleasure, so long as he is acting in pursuance of such charge, and of the powers and duties which it confers or imposes. But whenever he conspires with another wrong-doer to open the door and let him in to commit a felony, and the opening and entering are accordingly done, both parties are guilty of burglary. There has been in that case a breaking and entering of the mansionhouse of another, in strict pursuance of the definition of the offense. The house is in no sense the house of the servant, who had only a bare charge in regard to it, and power conferred by that charge ceased to exist when the servant sought to pervert it to the injury of his employer by opening an entrance into his dwelling-house to a felon by night. Henderson stood in no relation of a servant to Dabney in regard to the room which they jointly occupied, but had the actual possession and legal right of possession of that room jointly with Dabney.

There is a case referred to in 1 Russell on Crimes,1 in which a guest at an inn broke open and robbed the room of another guest at the same inn, being aided in such breaking by the landlord, to whom he pretended that the other guest had stolen his goods. Mr. Baron Adams, who tried the prisoner, doubting whether the bed-chamber could properly be called the dwelling-house of the prosecutor, as stated in the indictment, the case was submitted to the consideration of the judges. They all thought that though the prosecutor had for the night a special interest in the bed-chamber, yet that it was merely for a particular purpose, viz.: to sleep there that night as a traveling guest, and not as a regular lodger; that he has no certain and permanent interest in the room itself, but that both the property and possession of the room remained in the landlord, who would be answerable civiliter for any goods of his guest that were stolen in that room, even for the goods then in question, which he could not be unless the room were deemed to be in his possession. They thought also that the landlord might have gone into the room when he pleased, and would not have been at trespasser to the guest, the landlord in this case, says Russell, does not appear to have been privy to the felonious intent of the prisoner, but even if the landlord had been an accomplice in the act of the prisoner, it seems that his offense would not have been burglary; for though it

has been said that if the host of an inn break the chambers of his guest in the night to rob him, it is burglary, that doctrine is questioned; and it was well observed that there seems to be no distinction between that case and the case of owner residing in the same house, breaking the chamber of an inmate, having the same outer door as himself, which would not be burglary; and for this doctrine is cited 2 East's Pleas of the Crown.1

That authority cited from Russell and from East, shows that if the landlord or owner residing in the same house, breaking open the room of a guest or an inmate of the house, would not be guilty of burglary, a fortiori a joint tenant would not be guilty of that offense in unlocking the door of the joint tenement and taking therefrom the goods of his room-mate. In the former case the guest or inmate may be said to have in some sense a separate possession of his chamber during his occupancy of it, so as to make it, by construction of law, his dwellinghouse and not that of his host; but in the latter case, beyond all question, the joint tenement is as much the dwelling of one of the joint tenants as the other; and that is precisely this case.

There can be no doubt but that Clarke and Henderson stand upon the same footing in regard to the offense committed by them; and if it was not burglary in Henderson, it was not burglary in Clarke. If Henderson had a right to unlock the door and enter, he certainly had a right to permit Clarke to enter.

The cases before stated from 1 Russell, of constructive breaking by threats and fraud, are cases in which, though the entry by the felon may have been by the act of the owner, yet such act was not freely and voluntarily done, but was induced by force or the apprehension thereof, or frand; and so was not, in contemplation of law, the act of the owner. It was done invito domino.

We have seen no case, and we think there has been none, in which the entry was by the voluntary act and consent of the owner or occupier of the house which has been held to be burglary, and were we to affirm the judgment in this case, we would establish a doctrine of constructive burglary which would not only be new, but contrary to the well known definition of that offense. While the Legislature might make such a change, we think it would be judicial legislation in us to do so. If the question, upon principle, were more doubtful than it is, we would be inclined in favorem vitæ, not to apply the doctrine of constructive burglary to this new case. The offense of burglary may be punished with death.

We are therefore of opinion that the Hustings Court erred, both in

1 ch. 5 sec. 15, p. 502.

On consideration I do not think there was any evidence to support the indictment in this case. What was set fire to was not, in my opinion, a building, within the terms used in the statute, and the prisoner ought not to have been convicted.

No objection was taken to the form of the indictment. It seems to me, although I give no considered opinion on the point, that the indictment should set out the nature of the building according to the form given by the Procedure Act,1 for malicious injuries to property. If that form had been followed here, it would have suggested great difficulties in the way of a conviction.

WILSON, J., concurred.

Conviction set aside.

NOTES.

§ 328. Arson Defined. - Arson is the willful and malicious burning of the house or outhouse of another with intent to injure another.

$ 329.

Intent must be to Destroy Property or Injure Owner. - Therefore burning a hole in a guard-house for the purpose of escaping and not to consume or injure the building is not arson,' and so as to setting fire to a gaol for the same purpose. Willfully throwing a light into a post-office letterbox in a house with the intention of burning the letters, but not the house is not arson. Under the English statute a person who set fire to goods in a house intending to injure the owner of the goods, but not to burn the house or injure its owner, is not guilty of arson. So where a person intending to steal accidentally set fire to a ship, this was held not arson."

§ 330.

Burning Essential. - To scorch wood without consuming any of it is not sufficient burning to constitute arson."

§ 331. Must be "House of Another."— If the occupant is in possession rightfully and burns the house, he can not, in a legal sense, be guilty of burning the dwelling-house of "another." 8 As when he is in possession of the property under a contract to purchase. A tenant in possession of a copyhold messuage is not guilty of arson in burning it, although it has been surrendered to the use of the mortgagee; for it is not the house of another while the tenant continues in possession.10 So a tenant from year to year is not guilty."

1 32, 33 Vict., ch. 29.

2 Jenkins v. State, 53 Ga. 33 (1874).

3 Delaney v. State, 41 Tex. 601; People v. Cotteral, 18 Johns. 115 (1820); State v. Mitchell, 5 Ired. (L.) 350 (1845).

4 R. v. Batstone, 10 Cox, 21 (1864).

5 R. v. Child, 12 Cox, 64 (1871).

R. v. Faulkner, 13 Cox, 550 (1877).

7 R. v. Russell, C. & M. 542 (1842). As to the meaning of "burn," see Graham v. State, 40 Ala. 659 (1867).

8 State v. Hannett, 54 Vt. 86 (1881); Roberts v. State, 7 Cold. 359 (1870).

State v. Fish, 27 N. C. 323 (1859).

10 R. v. Spalding, 1 Leach, 258 (1780); R. v. Breeme, 1 Leach, 261 (1780).

11 R. v. Pedley, 1 Leach, 277 (1782).

In Sullivan v. State,1 the prisoner being in possession of a house on public land under a lease from B., who previously, by a verbal contract, had sold the possessory right to C. without the prisoner's knowledge, and the latter ejected C., who had entered, and burned the house, the prisoner was held not guilty of

arson.

Must be a Dwelling-House.

? 332. -The house burned must be a dwelling house, i.e., a house in which one lives; it must be occupied. A house built for a dwelling-house, but unoccupied for ten months previous, is not a "dwelling-house." A gaol is not a dwelling-house."▲

§ 333.

66

Uncompleted House not a "Dwelling-House."-The house

must be complete."

6

In State v. McGowan, the court say: "The information charges the accused with burning a dwelling-house, and the question in the case is whether the building, which was in fact burned by him, was a dwelling-house within the meaning of the common law on this subject. That it was a dwelling-house, as distinguished from a building of any other kind, is certain. The building is described to be one built and designed for a dwelling-house, constructed in the usual manner. It was designed to be painted, but was not yet finished in that respect, and not quite all the glass was set in one of the outer doors. The building had never been occupied, and it was not parcel nor appurtenant of any other. We think this was not a dwelling-house in such a sense as that to burn it constituted the crime of arson. In shape and purpose it was a dwelling house, but not in fact, because it had never been dwelt in it had never been used, and was not contemplated as then ready for the habitation of man.

"Arson, as understood at the common law, was a most aggravated felony, and of greater enormity than any other unlawful burning, because it manifested in the perpetrator a greater recklessness and contempt of human life than the burning of any other building in which no human being was presumed to be. Such seems to be the spirit of the English cases on this subject, and especially the late case of Elsmore v. The Hundred of St. Briavells.' In that case Bayley, J., in speaking of the building therein described, says: 'It appeared to have been built for the purpose of being used as a dwelling-house, but it was in an 1 unfinished state and never was inhabited. There can not be a doubt that the building in this case was not a house in respect of which burglary or arson could be committed. It was a house intended for residence, though it was not inhabited. It was not, therefore, a dwelling-house, though it was intended to be one.'

"A dwelling-house once inhabited as such, and from which the occupant is but temporarily absent, would not fall within the foregoing principle. It may not be necessary to determine another question made in this case whether it appertained to the court or the jury to determine the character of the building.

15 St. & P. 175 (1834).

2 Com. v. Barney, 10 Cush. 478 (1852); State v. Wolfenberger, 20 Ind. 242 (1863); Anonymous, 1 Lewin, 8 (1828); State v. Warren, 33 Me. 30 (1851); Com. v. Buzzell, 16 Pick. 153 (1854). "Any house" does not include a 66 gin house." State v. Thomas, 81 N. C. 555 (1879).

3 Hooker v. Com. 13 Gratt. 763 (1855).

4 R. v. Connor, 2 Cox, 65 (1846).

R. v. Edgell, 11 Cox, 132 (1867). 620 Conn. 245 (1850).

78 Barn. & Cress. 461; 15 Eng. Com. L. 266; 2 Russ. on Cr. 556.

an abuse of that authority, and leave the abuser as if he had done everything without authority. But where a man who was under no necessity to give an authority, does so, and the person receiving the authority abuses it, there is no reason why the law should interpose to make void everything done by such abuse, because it was the man's folly to trust another with an authority who was not fit to be trusted therewith."

Even here, however, it is not stated why it is reasonable that the law should make void everything done by an abuse of an authority.

can

A much more sensible reason for the distinction is given in Hammond's Nisi Prius.1 He observes that the reason given by Coke “ not be the true reason or the rule, because if the nature of the subsequent act of trespass was indicative of a previous evil intent, it must be so, not only in the instance where it has been perpetrated in executing an authority in law, but likewise where it has been committed in fulfilling an authority, in fact. The ground, therefore, upon which one who has been guilty of an abuse is made a trespasser ab initio, is, (for there is no other) that of policy, and the rule was instituted to prevent an authority in law being turned into an instrument of injustice and oppression." And Richardson, C. J., says, in the case of Barrett v. White & Co.,2 that it would be contrary to sound public policy to per. mit a man to justify himself at all under a license or authority allowed him by law, after he had abused it, and used it for improper purposes. The presumption of law is, that he who thus abuses such an authority, assumed the exercise of it in the first place for the purpose of abusing it. The abuse is, therefore, held to be a forfeiture of all the protection which the law would otherwise give.

But where the authority is derived from an individual, and the authority is abused, the party becomes a trespasser for the excess only; "for the necessity and policy which, in the instance where an authority in law has been abused, operate to invalidate the proceedings from the commencement no longer exist." 3

These remarks seem to us a sensible exposition of the reason of the distinction, Where the law invests a person with authority to do an act, the consequences of an abuse of that authority by the party, should be severe enough to deter all persons from such an abuse.

But has this "policy of the law" ever been extended to criminal cases? We are not aware that it has. It is true that, in order to ascertain the intent of the accused, the law often regards the nature of the act committed. But this is generally such an act as could not have been committed with any other than a criminal purpose. Thus the act of secretly taking the property of another, necessarily raises the pre

1 p. 59.

2 3 N. II. 227.

3 Hammond's Nisi Prius, 66.