2. That whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor (1). IX. Unnatural crimes. * IX. What has been before observed (k), with regard to the manner of proof, upon a charge of rape, which ought to be the more clear in proportion as the crime is the more detestable, may be applied to another offence, of a still deeper malignity; the infamous crime against [* 261] nature, committed either with man or beast. A crime which ought to be strictly and impartially proved, and then as strictly and impartially punished. But it is an offence of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out: for, if false, it deserves a punishment inferior only to that of the crime itself. I will not act so disagreeable a part, to my readers as well as myself, as to dwell upon a subject, the very mention of which is a disgrace to human nature. It will be more eligible to imitate in this respect the delicacy of our English law, which treats it, in its very indictments, as a crime not fit to be named; 'peccatum illud horribile, inter christianos non nominandum” (1). A taciturnity observed likewise by the edict of Constantius and Constans (m), "ubi scelus est id, quod non proficit scire, jubemus insurgere leges, armari jura gladio ultore, ut exquisitis poenis subdantur infames, qui sunt, vel qui futuri sunt rei." Our ancient law commanded such miscreants to be burnt to death; though Fleta says they should be buried alive; either of which punishments was indifferently used for this crime among the ancient Goths. But the penalty assigned to it, committed either with mankind or with any animal, is now penal servitude for life, or for any term not less than ten years (n). And an attempt to commit this crime, or an assault with intent to commit it, or an indecent assault upon any male person, is a misdemeanor, punishable with penal servitude for any term not exceeding ten, nor less than five years, ** or imprisonment for any term not exceeding two years, [* 262] with or without hard labour (0). And thus much for offences which more immediately affect the persons of individuals. () Sect. 59. Punishment: penal servitude for five years, or imprisonment for not more than two years, with or without hard labour. See Reg. v 18aacs, L. & C. 220; Reg. v. Hill man, Id. 343. (k) Ante, p. 257. (4) See in Rot. Parl. 50 Edw. 3, n. 58, a complaint, that a Lombard did commit the sin, "that was not to be named." 12 Rep. 37. (m) Cod. 9, 9, 31. (n) 24 & 25 Vict. c. 100, s. 61. The rule of law in regard to the above offence is, that if both parties concerned therein are arrived at years of discretion, agentes et consentientes pari poenâ plectantur; but if committed on a boy under fourteen, it is felony in the agent only, 1 Hale, P. C. 470; 3 Inst. 59. (0) 24 & 25 Vict. c 100, s. 62 *CHAPTER XIV. OFFENCES AGAINST PROPERTY. [* 263] OFFENCES against the property of individuals, like those directed against the person, are now mainly indicated and made punishable by statute (a), recourse, however, being still needed, in respect of matters about which the legislature has been silent, to the customary law. In the offences here to be considered the principal ingredients are malice and fraud, often accompanied by force. Proof that an act was done maliciously or fraudulently has been much facilitated by various statutory provisions which will from time to time be specified in notis. Offences falling within the scope of this chapter will be treated of in the following order: the maliciously setting fire to buildings and other things, burglary and housebreaking, simple, aggravated, and compound larceny, embezzlement, fraud, and false pretences, forgery, malicious injuries to property not previously noticed, and conspiracy to commit certain crimes. [* 264] I. Arson (b) is, at common law, the malicious and wilful burning of the house or out-house of another man. This is an act of very great malignity: I. Arson. because, first, it is an offence against that right of habitation, which is acquired by the law of nature as well as by the laws of society: next, because of the terror and confusion that necessarily attend it: and, lastly, because it wastes the substance of the community-in simple theft, of which we shall hereafter speak, the thing stolen only changes its master, but still remains in esse for the benefit of the public, whereas by burning the thing itself is absolutely destroyed. This crime may also be more destructive than murder itself: since murder, atrocious as it is, seldom extends beyond the felonious act designed; whereas fire may involve in a common calamity persons unknown to the incendiary, and not intended to be hurt by him-friends as well as enemies. For which reason the civil law (c) punished with death such as maliciously set fire to houses in towns, and contiguous to others; but was more merciful to such as only fired a cottage, or house, standing by itself. Our customary law distinguished with much nicety upon this crime, holding that not only the bare dwelling-house, but all out-houses parcel thereof, though not contiguous thereto, nor under the same roof, as barns and stables, might be the subject of arson (d). The common law also accounted it felony to burn a single barn in the field, if filled with hay or corn, though not parcel (a) The statutes principally cited throughout this chapter are:-the act concerning malicious injuries to property (24 & 25 Vict. c. 97); the act concerning larceny and other similar offences (24 & 25 Vict. c. 96); and the act concerning forgery (24 & 25 Vict. c. 98). By ss. 73, 117, and 51 respectively of the above statutes, it is enacted that when any person has been convicted of an indictable misdemeanor under either act, the court may, in addition to or in lieu of any of the punishments thereby authorised, fine the offender, and require him to enter into his own recognizances and to find sureties, both or either, for keeping the peace and being of good behaviour; and in case of any felony punishable under such act, the court may require the offender to enter into his own recognizances, and to find sureties, both or either, for keeping the peace, in addition to any punishment authorised by it: provided that no person be thus imprisoned for not finding sureties for any period exceeding one year. (b) Ab ardendo. of the dwelling-house (e). And many distinctions are to be met with in our books, concerning what would or would not amount to arson; cases such as alluded to, seem now, however, to be rendered almost useless by various *provisions of the statute 24 & 25 Vict. c. 97, which make felonious [* 265] each of the acts next mentioned when done unlawfully and maliciously (f). The setting fire to (1.) any dwelling-house, any person being therein (g), or (2.) any house, stable, coach-house, outhouse, warehouse, office, shop, mill, malthouse, hop-oast, barn, storehouse, granary, hovel, shed, or fold, or to any farm building, or to any building or erection used in farming land, [* 266 ] or in carrying on any trade or manufacture, or any branch thereof, whether the same be in the possession of the offender or of any other person, with intent thereby to injure or defraud any person (h); or (3.) any station, engine-house, warehouse, or other building appertaining to any railway, port, dock, harbour, canal, or other navigation (i); or (4.) any building other than any church or place of divine worship (j), or any public building (k), such as above-mentioned (7). * As to what was said to be a burning, so as to amount to arson, a bare intent, or attempt to do it, by actually setting fire to a house, unless it absolutely burned, was held not to fall within the description of incendit et combussit ; (e) 3 Inst. 69. (f) As to the significance of the words "wilfully and maliciously," see R. v. Farrington, Russ. & Ry. 207, decided under the 43 Geo. 3, c. 58, which made felonious the "wilfully, maliciously, and unlawfully setting fire to any mill, with intent to injure or defraud any one. There, at the trial, the case had been in other respects satisfactorily proved against the prisoner; but no evidence had been adduced to show that his intent was such as specified in the act, and sentence was respited until the opinion of the judges could be taken upon this question-whether, under the particular words of the statute above set out, the intent to injure or defraud some person was not necessary to be proved, or at least some fact from which such intent could be inferred, beyond the mere act of setting the mill on fire? It was held that the intent specified need not otherwise be proved, because a person who does an act wilfully necessarily intends that which must be the consequence of the act, and in the case put the accused had therefore in legal contempla tion intended to injure the owner of the premises which were burned. R. v. Farring ton accordingly shows that if proof be given that an act such as there in question was done wilfully, and not done under circumstances which would excuse or justify it, such proof will substantiate an allegation of malice and of an intent to injure. We may add that by sect. 58 of the stat. 24 & 25 Vict. c. 97, every punishment and forfeiture by that act imposed on any person maliciously committing an offence punishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether the offence be committed from malice conceived against the owner of the property in respect of which it be committed or otherwise. See R. v. Salmon, Russ. & Ry. 26. (g) Sect. 2. Punishment: penal servitude for life or for not less than five years,-or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping. See Reg. v. Fletcher, 2 C. & K. 215. The like punishment is by s. 9 awarded to the offence of unlawfully and maliciously, by the explosion of gunpowder or other explosive substance, destroying or damaging a dwelling-house, any person being therein, or any building whereby the life of a person shall be endangered, which is felony. (h) Sect. 3. Punishment ut supra. The above and any other similar provision of the said statute applies, although the offender be in possession of the property against or in respect of which such act may be done (sect. 59). Also it shall be sufficient in an indictment for any offence against the above act, where it may be necessary to allege an intent to injure or defraud, to allege that the party accused did the act with intent to injure or defraud (as the case may be), without alleging an intent to injure or defraud any particular person; and on the trial of any such offence it shall not be necessary to prove an intent to injure or defraud any particular person, but it shall be sufficient to prove that the party accused did the act charged with an intent to injure or defraud (s. 60). (i) Sect. 4. Punishment ut supra. (1) Sect. 6. Punishment: penal servitude for not more than fourteen years nor less than five years,-or imprisonment for not more than two years, with or without hard labour, and, if a male under the age of sixteen years, with or without whipping. ARSON. which were words necessary, in the days of law-latin, to all indictments of this In order to constitute the crime of arson, the burning must be malicious; and therefore no burning by negligence or mischance amounts to it. But by statute 6 Ann. c. 31, any servant, negligently setting fire to a house or outhouses, shall forfeit 100l. or be sent to the house of correction for eighteen months (p): in the same manner as the Roman law directed, eos, qui negligenter ignes apud se habuerint, fustibus vel flagellis cædi (q). The punishment of arson was death by our ancient Saxon laws (r). And in the reign of Edward I. this sentence was executed by a sort of lex talionis; for incendiaries were burnt to death (s): as they also were by the Gothic constitutions (t). The statute 8 Hen. 6, c. 6, made the wilful burning of houses, [* 268] under some special circumstances therein mentioned, amount to the crime of high*treason. But it was again reduced to felony by the general acts of Edward VI. and queen Mary (u); and now the punishment of arson, no longer capital, is left, as already shown, to be awarded within certain limits, according to the discretion of the Court. (712) (m) 1 Hawk. P. C. 105. (n) Sect. 7. Punishment: penal servitude for not more than fourteen nor less than five years, or imprisonment for not more than two years, with or without hard labour, and, if a male under the age of sixteen years, with or without whipping. By s. 10 the unlawfully and maliciously placing or throwing into, against, or near any building any gunpowder or other explosive substance, with intent to destroy or damage any building, or any machinery, tools, fixtures, or chattels, whether or not any explosion take place, or damage be caused thereby, is also a felony punishable as above, except that the imprisonment may be with or without solitary confinement. (0) Sect. 8. Punishment: penal servitude ut supra, or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping. (p) A similar provision is made within the (q) Dig. 1. 15, 4. bills of mortality; 14 Geo. 3, c. 78, s. 86. (r) Leg. Inae, c. 7. (t) Stiernh. de Jure Goth. 1. 3, c. 6. Com., (712) It is arson at common law to burn a barn stored with hay or grain (Sampson v. 5 Watts & S. [Penn.] 385); or to set fire to a building that is so near a dwelling-house as to endanger the latter. Gage v. Shelton, 3 Rich. (S. C.) 242. See State v. Terry, 4 Dev. & Bat. (N. C.) 185; State v. Stewart, 4 Conn. 47. But a man cannot commit arson by burning his own house, at common law, even when it is insured. See Bloss v. Tobey, 2 Pick. (Mass.) 20, 325; State v. Toole, 29 Conn. 342; Roberts v. State, 7 Cold. (Tenn.) 359. It is otherwise, however, under the statutes of some of the States. See State v. Elder, 21 La. Ann. 157; Hurd, 51 N. H. 176; Com. v. Erskine, Allen v. State, 10 Ohio St. 289; Shepherd v. People, 19 N. Y. (5 Smith) 537; People v. Hughes, 29 Cal. 257; People v. Schwartz, 32 id. 160; State v. 8 Gratt. (Va.) 624. The least burning of the house completes the offense. Thus, the charring of the floor in a single place, so as to destroy any of the fibres of the wood, is sufficient (State v. Sandy, 3 VOL. II - 64 II. Maliciously setting fire to property, &c. II. Besides the protection which has been thus specifically extended by the legislature to buildings and chattels by the above cited provisions of the statute 24 & 25 Vict. c. 97, the same enactment makes felonious the unlawfully and maliciously setting fire to a crop of hay, corn, or other cultivated vegetable produce, whether standing or cut down, or to any plantation of trees, or any heath or furze, wheresoever the same be growing (c); or to any stack of hay, corn, or other cultivated vegetable produce, or of heath, furze, turf, coals, charcoal, wood, or bark (y). And the unlawfully and maliciously attempting by any overt act to set fire to any such matter or thing as above mentioned, under such circumstances that if the same were thereby set fire to, the offender would be guilty of felony, is likewise constituted a felony (z). * Also the unlawfully and maliciously setting fire to any mine of coal or other mineral fuel (a), or attempting by any overt act to set fire to any [* 269] mine, under such circumstances that if the mine were thereby set fire to the offender would be guilty of felony, is made a felony (b). The following acts, when done unlawfully and maliciously, are also by the same statute made felonious:-the setting fire to, casting away, or destroying (x) Sect. 15. Punishment: penal servitude for not more than fourteen years nor less than five years, or imprisonment for not more than two years with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping. (y) Sect. 17. Punishment: penal servitude for life or not less than five years,-or im prisonment for not more than two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping. (z) Sect. 18. Punishment: penal servitude for not more than seven nor less than five years, or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping. (a) Sect. 26. Punishment: penal servitude for life or for not less than five years,-or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or with out whipping. (b) Sect. 27. Punishment: penal servitude for not more than fourteen nor less than five years, or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping. Ired. [N. C.] 570; People v. Butler, 16 Johns. 203; People v. Cotteral, 18 id. 115; Com. v. Betton, 5 Cush. [Mass.] 427; State v. Mitchell, 5 Ired. [N. C.] 350); and it is immaterial how soon the fire is extinguished (Hester v. State, 17 Ga. 130); or whether it be put out, or go out of itself. Com. v. Van Shaack, 16 Mass. 105, note. Malice is of the essence of the crime of arson at common law (Jesse v. State, 28 Miss. 100); and the same ingredient must enter into offenses of house-burning created by statute. Ib. When the building fired is another's, the intent may be inferred from the act (Com. v. Harney, 10 Metc. [Mass.] 422); or from threats, etc. State v. Rohfrischt, 12 La. Ann. 382. But in the statute offense of firing one's own house, with intent to defraud an insurance office, the intent must be substantively proved. McDonald v. People, 47 Ill. 533; see Martin v. State, 28 Ala. 71. An attempt to commit arson is an indictable misdemeanor. Com. v. Flynn, 3 Cush. (Mass.) 525; People v. Bush, 4 Hill, 133. As to the punishment of arson, reference must be made to the statutes of the various States. See, as to Massachusetts, Com. v. Wyman, 12 Cush. 237; District of Columbia, United States v. White, 5 Cranch's C. C. 73; South Carolina, State v. Bosse, 8 Rich. 276; North Carolina, State v. Seaborn, 4 Dev. 305; Virginia, Com. v. Posey, 4 Call. 109. In New York, arson is divided by statute into four degrees. And a person may, by burning his own dwelling-house, be guilty of arson in the first degree. Shepherd v. People, 19 N. Y. (5 Smith) 237. |