diately and necessarily following from the original act done, the offence will be felony.1

The general rule of intent, applies in arson as in other crimes, that a person is presumed to intend the ordinary consequences of his acts, and it devolves upon a person charged with crime to rebut this presumption by evidence of a different intent.2

(f) The Burning.-In order to constitute a burning, so as to amount to arson at the common law, a bare intent or attempt to do it by setting fire to the house, unless it actually burnt, did not fall within the description of the words which were necessary in the days of law latin to all indictments for the offence;3 but it will be observed that our statute, in most instances, uses the words "set fire to or burn.”

It is not necessary that the property should be wholly destroyed; the burning or consuming of any part is sufficient, though the fire be afterwards extinguished, and the offence is complete though the fire go out of itself.1

In order to constitute a setting on fire, it is not necessary that any flame should be visible.5

(g) of the Terms House, and Dwelling-house. In ascertaining the meaning of the term dwelling-house, which is used in the statute, cases of burglary are referred to in the books for a settlement of the term with respect to arson. This question will be found discussed in the subsequent section upon burglary.

The term house of another is also used in the statute. At the common law, the word house, in arson, had not the same significance as the word mansion-house when used in burglary. The word house extended not only to the dwelling-house but to all out

1 2 Russ on Cr., 550; 2 East. P. C., ch. 21, § 8; Coke v. Woodburne, 6 Harg. St. Tr., 222.

2 Peo. v. Orcutt, 1 Park., 252.

4 Blac. Com., 222.

* 4 Blac. Com., 222; 3 Inst., 66; Doct., 506; Peo. v. Cottarel, 18 John., 115; Peo. v. Butler, 16 John., 203; 4 City H. Rec., 77; 1 Hale, 568, 569; 1 Hawk., P. C., ch. 39, §§ 16, 17; 2 East., P. C., ch. 21, § 4; City H. Rec., 71. R. v. Stallion, R. & M., C. C., 398. Vide Com. v. Van Schaack, 16 Mass.,

105.

2 East. P. C., 1020; Rex v. McDonald, 2 Lew. C. Cases 46; 2 Russ. on Cr., 489, note; 1 Hale P. C., 567, note.

3 Inst., 67; Sum., 86; 2 Russ on Cr., 552.

houses which are parcel thereof, though not adjoining thereto or under the same roof.1

It is said that what shall be termed a house or house of another has never been settled in this country. Upon this point recourse is had to the decisions of the English courts of justice. But, on a trial for burglary, it has been held that the word house, in its primary and common acceptation, meant a dwelling-house.3

It will be observed that our statute declares, in its definition of arson in the first degree, that no warehouse, barn, shed, or other outhouse, shall be deemed a dwelling-house, or part of a dwelling-house, unless the same be joined to or immediately connected with and part of a dwelling-house, and, in a order to constitute arson in the second degree, the building set fire to must actually touch an inhabited dwelling-house, or be within the curtilage thereof; the word adjoining, as used in the statute, signifying in actual contact.4

Our courts have held that any building is a dwelling-house, within the act defining arson in the first degree, which is in whole or in part occupied by persons lodging therein at night, although other parts or the greater part may be occupied for an entirely different purpose.5

(h) The Ownership of the House.-At the common law the question of ownership was a material one, and questions of great nicety and subtleness frequently arose for the purpose of distinguishing the person who might be said to occupy the premises in his own right. But our Supreme Court, after a detailed examination of the authorities upon this subject, held that the house or building set fire to must be described as the house or building of the person in possession; and it was accordingly held that where the building burned was alleged as 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, that the accused could not be convicted."

1 2 Russ. on Cr., 552; 3 Inst., 67; 1 Hale, 552; 1 Hawk. P. C., ch. 39, § 1; Sum., 86; 4 Blac. Com., 221; 2 East. P. C., ch., 12, § 5.

Peo. v. Gates, 15 Wend., 158. Vide Pco. v. Van Blarcum, 2 John., 105.

Where the prisoner set fire to and burned the barn situated on the farm on which he at that time resided, working it on shares, and occupied the barn as a place of deposit for the crops raised on the place, it was held that he had no estate or legal possession of the barn, and that the barn was properly laid as the property of the landlord.1

(i) Day Time and Night Time.-Lord COKE, in his definition of arson, made the common law offence complete, whether committed in the day time or night time. The statutes of this State, in their classification of the offence into degrees, make the question a material one, whether the offence be committed in the day or night time. For a proper distinction of these two terms the reader is referred to the subject upon burglary, where the distinction is explained. It seems that anciently the day was accounted to begin only at sun rising and to end immediately upon sun set; but it was afterwards settled, as the better opinion, that if there were daylight or twilight enough began or left, whereby the countenance of a person might be reasonably discerned, it were day time.3

II. AGGRAVATED ASSAULTS.

(A) Assaults with Intent to Commit Felonies.

(B) Assaults with Dangerous Weapons with Intent to do Bodily Harm. An assault is an attempt with force and violence to do a corporeal injury to another, and may consist of any act tending to such injury, accompanied with circumstances denoting an intent, coupled with a present ability to use violence against the person.*

Assaults, or assaults when committed with any atrocious design, are regarded as aggravated offences, and are punishable at common law, according to the circumstances of the case: such as assaults with intent to kill, to rob, to ravish, to maim, or to commit any felony.5

Under our statutes, aggravated assaults, so far as they are felonies, are classified into assaults with intent to commit felonies,

1 Hale, 550; 3 Inst., 63; 1 Hawk. P. C., ch. 38, § 2; 2 East. P. C., ch. 15, § 21; Sum., 79; 4 Blac., Com., 224.

4

Hays v. The Peo., 1 Hill, 351. Vide assaults, post.

2 Arch. Cr. Pr., 7th ed., 285, note.

and assaults with intent to do bodily harm. These two divisions of the offence will be taken up and spoken of separately.

(A) Assaults with Intent to Commit Felonies.

The statutes of our State divide assaults with intent to commit felonies into two distinct classes, one of which comprises that class of offences where there is a simple assault, with such felonious intent; and the other, where the assault is aggravated by shooting, or attempting to discharge fire arms, or air guns, or where it is committed by means of any deadly weapon, or by such other means or force as was likely to produce death. The provisions of the statute in the respects above mentioned, are as follows:

Every person who shall be convicted of an assault with intent to commit any robbery, burglary, rape, manslaughter or any other felony, the punishment for which assault is not otherwise prescribed by statute, shall be punished by imprisonment in a State prison for a term not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.1

Every person who shall be convicted of shooting at another, or attempting to discharge any kind of fire arms, or any air gun at another, or of any assault and battery upon another by means of any deadly weapon, or by such other means or force as was likely to produce death, with the intent to kill, maim, ravish or rob such other person, or in the attempt to commit any burglary, larceny or other felony, or in resisting the execution of any legal process, shall be punished by imprisonment in a State prison.2

(a) Of the Intent.-The intention of the accused in all these cases, is of the gist of the offence. It is to be presumed, from the acts and words of the prisoner, or from other circumstances. It is not, in general, capable of positive proof. If it cannot, from the facts and circumstances which together with it constitute the offence, other acts of the defendant, from which it can be implied to the satisfaction of the jury, must be proved at the trial.3

12 R. S., 665, § 41. 2 R. S., 665, § 38. Arch. Cr. Pr., 104.

L

In cases of assaults with intent to kill, it is obviously of importance to consider the nature of the instrument used, and the part of the body on which the wouud was inflicted, according to the plain and fundamental rule, that a man's motives and intentions are to be inferred from the means which he uses, and the acts which he does. If, with a deadly weapon he deliberately inflicts a wound upon a vital part, where such wound would be likely to prove fatal, a strong inference results that his mind and intention were to destroy.1

(b) Assault with Intent to Rob.-Among the principal assaults, the aggravated nature of which may be said to arise from the great criminality of the object intended to be effected, is an assault upon a person with a felonious intent to commit a robbery. As an assault is an attempt to commit a forcible crime against the person of another, therefore an assault with intent to commit robbery, is nothing more than an endeavor to commit a robbery; and consequently, in order to maintain this charge, for the assault with an intent, etc., it is not necessary to prove an assault in the vulgar and ordinary acceptation of the term, namely, an attempt to commit a robbery; but all that is necessary on the part of the prosecutor to prove is, that the prisoner intended to rob him, and that he did some act in the presence of the prosecutor, for the purpose of effecting the robbery intended. The intention must, of course, be proved from some overt act, or expressions of the defendant, and the overt act will also prove the assault as well as the intention.3

The intent to rob will be gathered from the general conduct of the prisoner at the time: menaces, threats, violence, and in short whatever conduct, if it had been followed by a taking of property, would have constituted robbery, will, in this, be evidence of an intent to rob.4

The assault must be upon the person intended to be robbed. Where the assault was upon a post-boy driving a carriage, and the intention was to rob a gentleman in the carriage, the court held the indictment could not be sustained.5 The intent to rob

1 2 Stark. Ev., 500, 2d ed.

* 2 Arch. Cr. Pro., 426, note.

32 Arch. Cr. Pro., § 426.

4 Idem, vol. 2, 539, notes.

1 Leach, 380.