saying whether the right or left, it is bad. (k) Where an infant died in consequence of violence by a rape, the indictment was holden bad for not stating that a mortal wound was given. (1) It must be stated that the deceased died of the injury received. (m) The time, both of the stroke and of the death, should be stated, that the death may appear to have taken place within a year and a day after the mortal injury.(n) And this must be proved, or the law will presume some other cause of death.(o) Where the mortal wound is given in one county and the death happens in another, the indictment may be found in the latter county; and the same proceedings are to be had thereon in all respects as if the wound was given in the county where the death took place.(p) Evidence.] It will be seen, from what has been already stated, what, under different circumstances, will be necessary to support the allegations of the indictment, and what allegations are necessary to be proved. The dying declarations of the deceased are receivable in evidence if the court be satisfied that he was conscious of being in a dying state at the time he made them ;(q) and was sensible of his awful situation ;(r) even though he did not actually express any apprehension of danger ;(s) and his death did not ensue until a considerable time (in this case eleven days) after the declaration was made. (t) But these declarations are admissible only where the death of the deceased is the subject of the charge, and the causes of the death are the subject of the declaration.(u) Therefore, upon an indictment for perjury, a dying declaration is not admissible to disprove a fact upon which the perjury is assigned. (v) So, upon an indictment for administering savine to a woman not quick with child, her dying declarations are not admissible, even though they relate to the cause of her death (w) And though, what the murdered person says in articulo mortis, as to facts, is admissible, what he says as matter of opinion is not.(x) Nor is the dying declaration of a criminal, at the scaffold; for after his blood is corrupted, his oath would not be received in a court of justice.(y) The dying declaration of an accomplice is also evidence; (2) provided he were at the time such a person as would be a competent witness.(a) But according to the above rule, it seems that the dying declaration of an accomplice can be received only when the defendant is charged with assisting the deceased to destroy himself. (b). Where two such declarations were made, and the second only was reduced into writing, in the presence of a magistrate, this written declaration not being forthcoming at the trial, the judges held, that in the absence of it the first declaration was admissible in evidence. (c) Manslaughter will be noticed in another place. 3. ARSON. Arson, at common law, is defined to be the wilful and malicious burning of the dwelling house or out house of another man. (e) By the revised statutes, the crime of arson is divided into four degrees; the first of which, only, being a capital offence, will be considered in this connection. Arson in the first degree is declared by the revised statutes to consist in wilfully setting fire to, or burning in the night time, a dwelling house, 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, is to be deemed a dwelling house of any person so lodging therein.(ƒ) But no warehouse, barn, shed, or other out house, 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.(g) Arson is a crime of very great malignity, not only as against the right of habitation, but as being, in the first degree especially, imminently dangerous to human life. To constitute this crime, in the first degree, there must be, 1. A setting fire to, or burning; 2. It must be wilful, and dictated by malice; 3. The place set fire to or consumed must be the dwelling house of another person, in which there shall be, at the time, some human being; and 4. The setting fire to or burning must be in the night time. 1st. There must be an actual setting fire to or burning. But it is not necessary that the entire building should be set on fire, or that any part (z) 1 East's P. C. 354, 6. (a) Id. 353. 1 Leach, 378. (e) 4 Black. Com. 220. of it should be entirely consumed; for if once a part of it is on fire, though it should go out without any effort to extinguish it, the crime will be complete.(h) 2d. It must be wilful and malicious. The accidental burning, therefore, of a dwelling house, though it occur in doing an unlawful act, is not arson in the first degree. (i) But if a man intending to commit a felony, by accident sets fire to another man's house, this, as it seems, is arson at common law. (k) But malice, in this case, does not merely imply a design to injure the party who is ultimately the sufferer, but an evil and mischievous intention, however general. For if a man has a design to burn one house, and by accident the flames destroy another, in which there shall be, at the time, some human being, he will be guilty of a malicious burning of the latter.(7) In general, if the act be proved to have been done wilfully, it may be inferred that it was done maliciously, unless the contrary be proved. (m) 3d. The place set fire to or consumed must be the dwelling house of another person, in which there shall be, at the time, some human being. "House of another person." These words refer, not only to the entire interest and legal title, but to the possession. The lawful possession confers a property, while it exists. The offence may be committed by a landlord's wilfully setting fire to his own house, of which another is in possession under a lease from himself or from those whose estate he hath; for during the lease the house is the property of the tenant. (n) It has been decided in this state, that under the section of the revised statutes above referred to, the indictment must describe the house or building set fire to or burned, as the house or building of the person in possession. And it was accordingly held, that where the building burned was alleged in the indictment to be the building of the owner, and the proof was that at the time of the committing of the offence it was in the possession of a tenant, the accused could not be convicted. (o) In this case Chief Justice Savage observes, in relation to the section of the revised statutes defining arson in the first degree: "It seems to have been intended to obviate all difficulty as to laying the ownership in the indictment, and of proving the title on the trial. It may be laid as the dwelling house of any person usually lodging therein at night. The statute does not say, in terms, that the house, the burning of which in the night time constitutes arson in the first degree, shall be the house of another; but such must necessarily be (h) 3 Inst. 66. 2 Chit. Cr. L. 1104. (2) 1 Hale, 569. (m) Russ. & Ry. C. C. 207. (n) 4 Black. Com. 222. Fost. 115. (0) 15 Wend. 159. See also 2 John. Rep. 105. the construction. In defining arson in the third degree, the language is this: Every person who shall wilfully set fire to, or burn, in the night time, the house of another,' &c. (2 R. S. 667, § 4.) The legislature did not intend to require greater particularity in the third degree than in the first and second. According to the literal construction of the section. defining the offence of arson in the first degree, a man might be punished with death for burning his own house, in his own possession. I apprehend such was not the intention of the legislature, but that the common law may be called in aid of the definition of the offence, particularly when taken in connection with the section above referred to, defining arson in the third degree. If this qualification should be annexed to the offence of arson in the first degree, it must be equally applicable to the same offence in the second degree." (p) The revised statutes have made an important change in the law respecting this crime, by making it necessary, in order to the commission of arson in the first degree, that there should be in the house, at the time of the setting fire to or burning it, some human being. At common law it was immaterial whether there was any person in the house at the time, or not. 4th. The setting fire to or burning must be in the night time. If there be day light enough begun in the morning or left in the evening, so as that the features of a man's face may be thereby discerned, the crime is not complete. But this does not extend to moonlight; for the malignity of the offence does not so much arise from its being done in the dark, as at the dead of the night; "when all the creation except beasts of prey are at rest, and when sleep has disarmed the owner and rendered his castle defenceless." (q) If the evidence is not sufficient to warrant a conviction for having committed this crime, the prisoner may be convicted of an attempt to commit it, if it be proved that he has done any act towards the perpetration thereof. (r) Indictment.] It is sufficient if the indictment describe the building in the language of the act on which the indictment is founded. (s) "House" merely, without saying "dwelling house," will suffice. (t) It is no variance to call a building within the curtilage, an "outhouse" in general terms. (u) The name of the owner must be stated as in burglary.(v) We have before observed, that an indictment under our statute must de (p) Idem, 162. (9) 4 Black. Com. 224. 3 Inst. 63. 1 Hale, 547. 1 Hawk. c. 38. (r) 2 R. S. 698, § 3. (s) 2 East's P. C. 1033. (u) Matt. Dig. Cr. L. 55. scribe the building set fire to as the building of the person in possession.(w) If the indictment state the possession to be in A., proof that the house is in the possession of his tenants will support it. (x) If one intending to burn A.'s house happen to burn B.'s, he may be indicted as having maliciously burned B.'s house. (y) In laying the intent, the word "thereby" must not be omitted. (z) It is not necessary to aver that the property was burnt, but only that it was "set fire to." (a) The day need not be proved as laid, and proof that the crime was committed in the night is no variance.(b) Evidence.] Prove the kind of property "set fire to" to be the same as stated in the indictment, and that it was set fire to by the defendant. The intent must also be proved. The act of the defendant and the guilty intent must in general be proved by circumstantial evidence.(c) Where a house was robbed and burnt, evidence that the stolen goods were found in the possession of the defendant was admitted against him on a charge for arson. (d) An indictment under our revised statutes must aver that at the time the house was set fire to there was in it some human being; and this averment must be proved. (w) See ante, p. 54. (y) 1 Hawk. ch. 18, s. 18. (z) 1 Chit. Burn. 542. (a) Matt. Dig. 56. (b) 2 East's P. C. 1021. (c) Matt. Dig. 56. |