§ 388. Intent and malice-In general. To constitute arson at common law and under many of the statutes, the burning must be both wilful and malicious; 41 and hence there is no criminal responsibility where the burning is due to accident, negligence or mischance.42 But malice aforethought is not essential unless the statute so provides.48 Some of the statutes use the term "wilfully" only, and do not expressly require that the burning shall be malicious.44

Other statutes require the fire to be set "wilfully and wantonly," and where such is the case both wilfulness and wantonness must be alleged and shown,45 but it need not have been set feloniously.46 Maliciously means wrongfully, intentionally, and without just cause or excuse.47

Wilfully, it has been held, means something less than maliciously, and more than intentionally. It means unlawfully, and to some extent wickedly.48 But it has also been held that it is included in the term maliciously. 49 It has also been held that it means with a felonious intent,50 and also the doing of the act purposely and intentionally, not accidentally.51

Wantonly implies that the act was done of a licentious spirit, perversely, recklessly, without regard to propriety or the rights of others, careless of consequences, and yet without settled malice.52 It is not equivalent to unlawfully and maliciously.53

Malice may be inferred by the jury from the fact of an unlawful burning, or of a conspiracy to commit arson.54 Setting fire directly to a dwelling house or other building and burning the same necessarily implies an intention to burn it, and no such intention need be alleged.55 And on the principle that a man is presumed to have intended the natural and probable consequences of his voluntary acts,

45 State v. Pierce, 123 N. C. 745, 31 S. E. 847; State v. Morgan, 98 N. C. 641, 3 S. E. 927.

46 State v. Draughon, 151 N. C. 667, 65 S. E. 913; State v. Morgan, 136 N. C. 628, 48 S. E. 670; State v. Battle, 126 N. C. 1036, 35 S. E. 624.

47 State v. Lockwood, 1 Boyce (24 Del.) 28, 74 Atl. 2; State v. Ross, 77 Kan. 341, 94 Pac. 270.

48 Luke v. State, 49 Ala. 30, 20 Am. Rep. 269.

49 Maliciously is more comprehen

sive than wilfully, but it includes the latter term, and an allegation that the burning was done maliciously is equivalent to an allegation that it was done wilfully. State v. Pierce, 123 N. C. 745, 31 S. E. 847; State v. Green, 92 N. C. 779; State v. Thorne, 81 N. C. 555.

50 Kehoe v. Com., 149 Ky. 400, 149 S. W. 818; State v. Morgan, 136 N. C. 628, 48 S. E. 670.

51 State v. Ross, 77 Kan. 341, 94 Pac. 270.

52 State v. Morgan, 98 N. C. 641, 3 S. E. 927. And see State v. Battle, 126 N. C. 1036, 35 S. E. 624.

58 State v. Morgan, 98 N. C. 641, 3 S. E. 927.

54 Lipschitz v. People, 25 Colo. 261, 53 Pac. 1111.

55 State v. Watson, 63 Me. 128; State v. Hill, 55 Me. 365.

if a man does an unlawful act, the natural tendency of which is to set fire to and burn a house, and such a consequence follows, the burning is to be regarded as intentional and malicious.56

A particular intent or malice against a particular person or thing is not necessary unless required by statute.57 Nor is an intent to injure or destroy the building an essential element of the offense unless the statute so provides.58 But some of the statutes in terms require that there be an intent to destroy the building,59 or an intent to injure or defraud some person.60 The existence of a specific intent to defraud an insurance company does not negative general malice or malice against the owner of the building, and will not prevent a conviction of arson for burning the building of another even where burning with intent to defraud an insurer is a separate and distinct offense. 61

§ 389. Burning jail in order to escape. Some courts hold that a prisoner who sets fire to and burns a part of a prison or jail cannot be convicted of arson where his sole purpose is to escape from confinement.62 But others hold that such a burning is arson,63 especially

56 Reg. v. Faulkner, 13 Cox C. C. 550, Ir. 11 C. L. 13; Reg. v. Lyons, 8 Cox C. C. 84. See also § 386, supra.

57 Goff v. State, 60 Fla. 13, 53 So. 327; Mai v. People, 224 Ill. 414, 79 N. E. 633; Crow v. State, 136 Tenn. 333, 189 S. W. 687, 1 A. L. R. 1160.

58 State v. Snellgrove, 71 Ark. 101, 71 S. W. 266; People v. Fanshawe, 137 N. Y. 68, 32 N. E. 1102, aff'g 65 Hun 77, 19 N. Y. Supp. 865. See also §§ 389, 390, infra.

59 People v. Mooney, 127 Cal. 339, 59 Pac. 761; People v. Fong Hong, 120 Cal. 685, 53 Pac. 265; Clemens v. State, Okla. Cr. 187 Pac. 1100.

60 State v. Porter, 90 N. C. 719. Intent to defraud insurer, see § 391, infra.

61 People v. Fong Hong, 120 Cal. 685, 53 Pac. 265; Lipschitz v. People, 25 Colo. 261, 53 Pac. 1111.

62 People v. Cotteral, 18 Johns, (N. Y.) 115; State v. Mitchell, 5 Ired.

(N. C.) 350; State V. Neville & Thomas, 2 Ohio Dec. (Reprint) 358; But see People v. Fanshawe, 65 Hun. (N. Y.) 77, 19 N. Y. Supp. 865, aff'd 137 N. Y. 68, 32 N. E. 1102, where it is said that People v. Cotteral has been repudiated, and is no longer the law.

He cannot be convicted of an attempt to burn a house under such circumstances where the statute makes an intent to consume or generally injure the building an essential element of arson. Washington v. State, 87 Ga. 12, 13 S. E. 131; Jenkins v. State, 53 Ga. 33, 31 Am. Rep. 255. 63 Lockett v. State, 63 Ala. 5.

It is arson where a prisoner sets fire to the wooden door of a jail with such intent, though all the rest of the building is fire proof. Crow v. State, 136 Tenn. 333, 189 S. W. 687, 1 A. L. R. 1160.

where the statute does not make malice an essential element of the offense, but merely requires a wilful burning.64

If the prisoner intends to burn up the building in order to escape, then his offense is arson,65 and it has been held that such an intent may be presumed if he sets fire to it in such a way as is reasonably calculated to burn it up.66

§ 390. Setting fire to one building and burning another. A person who sets fire to a building with intent to burn another building may be convicted of arson for burning the latter.67 And the same has been held to be true where the burning of the second building is the natural and probable consequence of setting fire to the first, even though no specific intent to burn the second is shown.68 So if a person sets fire to his own house or any other building, the burning of which is not arson, and as a natural and probable consequence the house of another is burned, the burning of the latter is arson.69 To warrant a conviction under a statute making it an offense to set fire to an adjoining building with intent to burn a dwelling house where such dwelling house is burned, an intent to burn the dwelling house must be alleged, since there might have been an intent to burn the building set on fire and not the dwelling house.70 But an intention to burn the dwelling house is not necessary under a statute which merely requires that the first building shall be maliciously and wilfully set on fire, and that as a result the dwelling shall be burned.71

66 State v. Neville & Thomas, 2 Ohio Dec. (Reprint) 358.

67 Grimes v. State, 63 Ala. 166; Combs v. Com., 93 Ky. 313, 20 S. W. 221; State v. Roberts, 15 Ore. 187, 13 Pac. 896. And see § 382, supra.

68 Hennessey v. People, 21 How. Pr. (N. Y.) 239. And see Combs v. Com., 93 Ky. 313, 20 S. W. 221; Woodford v. People, 62 N. Y. 117.

69 Combs v. Com., 93 Ky. 313, 20 S. W. 221; State v. Laughlin, 53 N. C. 354; Rex v. Pedley, Cald. 218; Isaac's Case, 2 East P. C. 1031;

Probert's Case, 2 East P. C. 1030. And see State v. Toole, 29 Conn. 342, 76 Am. Dec. 602; McDonald v. People, 47 Ill. 533; Woodford v. People, 62 N. Y. 117, 20 Am. Rep. 464; Early v. Com., 86 Va. 921, 11 S. E. 795; Lacy v. State, 15 Wis. 13.

The wilful and malicious setting fire to a house, the burning of which is only a misdemeanor, will become a capital felony if a building the burning of which is a capital felony is thereby burned, where such burning is the probable consequence of the first illegal act. State v. Laughlin, 53 N. C. 354.

See also § 382, supra. 70 State v. Watson, 63 Me. 128; State v. Hill, 55 Me. 365.

71 Colbert v. State, 125 Wis. 423,

§ 391. Burning for purpose of defrauding insurance company. It is not arson at common law for a man to burn his own house, occupied by him, for the purpose of defrauding an insurance company.72 Nor is such a burning within a statute making it arson to burn the dwelling house of another.78 But the contrary is true where under the statute it is arson for a person to wilfully and maliciously burn his own dwelling house.74

The burning of insured property with intent to defraud the insurer is specifically made arson by statute in some states even where it is owned or occupied by the accused.75 And in others it is made a special separate offense.76 Under some of the statutes the property burned must belong to the accused," while under others it is not

104 N. W. 61. And see People v. Fairchild, 48 Mich. 31, 11 N. W. 773; Early v. Com., 86 Va. 921, 11 S. E. 795.

72 State v. Haynes, 66 Me. 307, 22 Ann. Rep. 569; State v. Sarvis, 45 S. C. 668, 24 S. E. 53, 55 Am. St. Rep. 806, 32 L. R. A. 647; Isaac's Case, 2 East, P. C. 1031.

73 Com. v. Makely, 131 Mass. 421. 74 State v. Dinagan, N. H. 104 Atl. 33.

75 Hart v. State, 181 Ind. 23, 103 N. E. 846; State v. Jessup, 42 Kan. 422, 22 Pac. 627; State v. Henriksen, 116 Minn. 366, 133 N. W. 850; State v. Bersch, 276 Mo. 397, 207 S. W. 809; State v. Tucker, 84 Mo. 23; People v. Smith, 162 N. Y. 520, 56 N. E. 1001; Dedieu v. People, 22 N. Y. 178.

76 Alabama. Heard v. State, 81 Ala. 55, 1 So. 640.

California. People v. Fong Hong, 120 Cal. 685, 53 Pac. 265; People v. Barbera, 29 Cal. App. 604, 157 Pac. 532.

Florida. Goff v. State, 60 Fla. 13, 53 So. 327.

Illinois. People v. Darr, 255 Ill. 456, 99 N. E. 651; Elgin v. People, 226 Ill. 486, 80 N. E. 1014; Mai v. People, 224 Ill. 414, 79 N. E. 633.

Michigan. Apparently it is a distinct offense in Michigan, although it has not been so held. See People v. Stewart, 163 Mich. 1, 127 N. W. 816; People v. Mix, 149 Mich. 260, 112 N. W. 907, 12 Ann. Cas. 393; Meister v. People, 31 Mich. 99; Hamilton v. People, 29 Mich. 173; Jhons v. People, 25 Mich. 499; People v. Jones, 21 Mich. 215.

New Jersey. State v. Brand, 77 N. J. L. 486, 72 Atl. 131, aff'g 76 N. J. L. 267, 69 Atl. 1092.

Ohio. Jones v. State, 70 Ohio St. 36, 70 N. E. 952, 1 Ann. Cas. 618. Vermont. State v. Babcock, 51 Vt.

570.

It differs from arson in that it may be committed on personal property, and on one's own property, that it must be committed on property which is at the time insured against loss by fire, and with the specific intent to injure the insurer, and in the punishment to be imposed. Mai v. People, 224 Ill. 414, 79 N. E. 633.

77 Under such a provision it is not necessary that he be the sole owner of it, but it is sufficient if he has an interest in it, as where he owns it in common with another.