State v. McGowan

| Conn. | Jul 15, 1850

Church, Ch. J.

The statute of this state prescribes the punishment of arson, but it does not define the crime. We look to the common law for its definition.

Arson, by the common law, is the wilful and malicious burning of the house of another. The word house, as here understood, includes not merely the dwelling-house, but all out-houses which are parcel thereof. 1 Hale, 570. 4 Bla. Com. 221. 2 Russ. on Crimes, 551.

This information charges the accused with burning a dwelling-house, and the question in the case, is, whether the build- - ing, 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 were set in one of the outer doors. The building had never been occupied, and it was not parcel nor an 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:&emdash;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, and 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, 8 B. & C. 461. (15 E. C. L. 266.) 2 Russ. on Crimes, 556. 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 unfinished state, and never was inhabited. There cannot 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&emdash;whether it appertained to the court or the jury to determine the character of the building ? But we think it was the duty of the court to have instructed the jury as to the law of the matter, and leave it to them to say from the proof, whether the building was a house, within the meaning of the law thus explained.

The considerations we have now expressed, induce us to grant a new trial of this cause.

In this opinion the other Judges concurred.

New trial to be granted.