1. The attempt “to burn a house,” referred to in section 4376 of the Code, must mean an attempt to commit the burning defined in section 4381, that is, “ to consume or generally injure the house.” One is not guilty of the crime of burning unless “'the house is consumed or generally injured.” If the offense of burning requires a total destruction or general injuring of the house to make it complete, then the attempt to *35burn involves the intention to destroy or to generally injure. If the facts fall short of proving this intent, then the crime of attempted arson is not proved. Eape is the carnal knowledge of a female forcibly and against her will. An attempt to commit rape implies the intent to have that knowledge forcibly, etc. An assault with intent to murder must have in it all the elements which constitute murder, except the death of the party assaulted. So an attempt to' commit arson must have all the features of arson except the actual destruction or the generally injuring of the house — that is, it must be shown to have been the intent of the defendant to do one or both of those things. So thought the supreme court of North Carolina, in the case of The State vs. Mitchell, 5 Iredell, 350. There the defendant was indicted for burning the jail in which he was confined. The door of the room in which he was placed and the ceiling of that room were partially consumed. The question raised was, that if ihe prisoner only intended to burn off the lock, so he could escape, and not to burn down the jail, he was not guilty. A contrary charge was given to the jury, and on a review of the case, the supreme court held that if it was not the intention of the prisoner to burn or destroy the jail, but he put fire to the lock to burn it off to effect his escape, and not to destroy, the felony was not complete. It was added by the court that if the prisoner willfully put fire to the jail with the intent to effect his escape byli consuming or destroying it, he would be guilty if the jury!' should believe that his secondary intent was to burn and! destroy the jail, although his main intent was thereby tojj effect his escape. This qualification was correct. The court referred to the case of The People vs. Cotteral, 18 John. 115, as an authority for the decision. That case does sustain the one quoted from Iredell, and asserts the same principle. The North Carolina case discusses the matter at length, both on principle and authority, and we think the conclusion is right. It is unnecessary to review the testimony contained in the record to show that, as it appears, this intent on the part the defendant in this case was not sufficiently shown to au*36thorize a conviction involving life or imprisonment for life. It may be stated that the place where the attempt to set fire was made, the fact that there were materials unconsumed whereby the fire might have been continued, especially when taken in connection with the statement made by the chief witness for the state, that he thought the defendant “attempted' to burn a hole,” make it doubtful whether it was the intent of the prisoner, in the language of the Code, to consume or generally injure the house. This statement was made by the witness without objection, and after he had given a detailed account of all that he saw and the appearance of everything connected with the jail.
2. At any rate, under this testimony, where such consequences are involved, we think that an investigation on another trial would be best.
