The offence described in the first count of the indictment, would have been arson at common law, and consequently, is the same offence under the 26th sect, of the statute concerning crimes and punishments. (2 Russel on Crimes, 1661. 916.) By reference to the above author it will be seen, that when a barn or out-house is parcel of a dwelling-house, the burning of such barn, constitutes arson ; and the rules for deciding whether an out-house is, or is not parcel of the mansion-house, are fully given. It is impossible to say, that a barn eighteen rods from the mansion-house, entirely disconnected and separated by a highway, is parcel of such house.
The count for burning a barn not parcel of the dwelling-house, must be laid entirely out of consideration, though clear
The case, then, is precisely the same, as it would have been, had the information contained only the first count; and the only question is, whether the facts proved sustained the count on which the prisoner was convicted.
So far from this, the facts proved were not even evidence to be submitted to the jury, on the first count of the information. It is a clear case of the jury’s misapplying the testimony ; and a new trial must be advised.
New trial to be granted.