of ships, or vessels, or any of his majesty's military, naval, or victualling stores, or other ammunition of war, or any place or places, where any such military, naval, or victualling stores, or other ammunition of war, is, are, or shall be kept, placed, or deposited; that then the person or persons guilty of any such offence, being thereof convicted in due form of law, shall be adjudged guilty of felony, and shall suffer death as in cases of felony, without benefit of clergy.'

By s. 2," any person who shall commit any of the offences before mentioned, in any place out of this realm, may be indicted and tried for the same, either in any shire or county within this realm, in like manner, and form as if such offence had been committed within the said shire or county, or in such island, county or place where such offence shall have been actually committed, as his majesty, his heirs or successors, may deem most expedient for bringing such offender to justice: any law, usage, or custom notwithstanding." This offence is still capital, 7 & 8 Geo. 4, c. 28, ss. 6 and 7.

By the Naval Discipline Act, 1866 (29 & 30 Vict. c. 109, s. 34), persons subject to that act are liable to the punishment of death for setting fire to dockyards, ships, etc.

Setting fire to ships, etc., in the port of London. The 39 Geo. 3, c. 69, a public local act for rendering more commodious and for better regulating the port of London, enacts (by s. 104), "that if any person or persons whomsoever shall wilfully and maliciously set on fire any of the works to be made by virtue of this act, or any ship or other vessel lying or being in the said canal, or in any of the docks, basins, cuts, or other works to be made by virtue of this act, every *person so offending in any of the said cases shall be adjudged *289] guilty of felony without benefit of clergy."

Attempting to set fire to ships or vessels. By the 24 & 25 Viet. c. 97, s. 44, "whosoever shall unlawfully and maliciously, by any overt act, attempt to set fire to, cast away, or destroy any ship or vessel, under such circumstances that if the ship or vessel were thereby set fire to, cast away, or destroyed, the offender would be guilty of felony, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen and not less than three [now five] years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping."

Malice against owner of property unnecessary. By s. 58, "every punishment and forfeiture by this act imposed on any person maliciously committing any offence, whether the same be punishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether the offence shall be committed from malice conceived against the owner of the property in respect of which it shall be committed or otherwise."

Where person committing the offence is in possession of the property injured. By s. 59, "every provision of this act not hereinbefore so applied, shall apply to every person who, with intent to injure or defraud any other person, shall do any of the acts hereinbefore made penal, although the offender shall be in possession of the property against or in respect of which such act shall be done."

Intent to injure or defraud a particular person need not be stated. By s. 60, "it shall be sufficient in any indictment for any offence against this act, where it shall 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 (as the case may be)."

Proof of the setting fire. To constitute arson at common law it must be proved that there was an actual burning of the house or of some part of it, though it is not necessary that any part should be wholly consumed, or that the fire should have any continuance; 2 East, P. C. 1020; 1 Hale, P. C. 569.1 In the 9 Geo. 1, c. 22, the words "set fire" are used, and Mr. East observes, that he is not aware of any decision which has put a larger construction on those words than prevails by the rule of the common law. 2 East, P. C. 1020. And he afterwards remarks, that the actual burning at common law, and the "setting fire" under the statute, in effect mean the same thing. Id. 1038. The words " set fire " are used in all the subsequent statutes, so that this passage and the following decisions are still applicable. The prisoner was indicted (under the 9 Geo. 1, c. *22) for setting fire to an outhouse, commonly called a papermill. It appeared that she had set fire to a large quantity of [*290 paper, drying in a loft annexed to the mill, but no part of the mill itself was consumed. The judges held that this was not a setting fire to the mill within the statute. R. v. Talyor, 2 East, P. C. 1020; 1 Leach, 49. So on a charge of arson, it appeared that a small faggot was set on fire on the boarded floor of a room, and the faggot was nearly consumed; the boards of the floor were "scorched black, but not burnt," and no part of the wood of the floor was consumed. Cresswell, J., said, "R. v. Parker (see infra) is the nearest case to the present, but I think it is distinguishable. . . . I have conferred with my brother Patteson, and he concurs with me in thinking, that as the wood of the floor was scorched, but no part of it consumed, the present indictment cannot be supported. We think that it is not essential to this offence that the wood should be in a blaze, because some species of wood will burn and entirely consume without blazing at all." R. v. Russell, Car. & M. 541. Where the prisoner was

1 Commonwealth v. Tucker, 110 Mass. 403.

pouring boiling water on the leaves of the shrub; and the medical men examined stated that such preparation is called an infusion and not a decoction. It was objected that the medicine was misdescribed, but Lawrence, J., overruled the objection. He said infusion and decoction are ejusdem generis, and the variance is immaterial. The question is, whether the prisoner administered any matter or thing to the woman with intent to procure abortion. R. v. Phillips, 3 Campb. 78. The authority of this decision appears to have been recognized by Vaughan, B., in the following case: The prisoner was indicted under the 9 Geo. 4, c. 31, s. 13, for administering saffron to the prosecutrix, with intent to procure abortion. The counsel for the prisoner cross-examining as to the innocuous nature of the article administered, Vaughan, B., said, "Does that signify? It is with the intention that the jury have to do; and if the prisoner administered a bit of bread merely with the intent to procure abortion, it is sufficient to constitute the offence contemplated by the act of Parliament." R. v. Coe, 6 C. & P. 403, 25 E. C. L. The words in the clause of the repealed statute 9 Geo. 4, c. 31, s. 13, under which the prisoner appears to have been indicted in this case were "any medicine or other thing." In a case upon the present statute, where the prisoner was indicted for supplying "a certain noxious thing," and the evidence was, that the thing supplied was of a perfectly harmless character in itself, though if taken with the belief that it would procure a miscarriage, it might, by acting on the imagination, produce that effect; it was held, that the conviction must be quashed, as there was no evidence that the thing supplied was noxious. R. v. Isaacs, 1 L. & C. 220; 32 L. J., M. C. 52. But where there was no evidence of the ingredients of the thing administered, or of its character being harmless or otherwise, except that in fact it made the witness ill and produced miscarriage, it was held that there was evidence of its being a noxious thing. R. v. Hollis, 12 Cox, C. C. R. 463. If the drug be innocuous if taken in *small quantities, but harmful if taken in large, it would ap*276] pear to be a noxious thing, but, query, if it be a recognized "poison," it would perhaps come within the Act even if administered in so small a dose as to be innocuous. 24 & 25 Vict. c. 100, s. 58; R. v. Cramp, 5 Q. B. D. 307; 49 L. J., M. C. 44; R. v. Hennah, 13 Cox, 547.

The former statutes on this subject, the 43 Geo. 3, c. 58, and 9 Geo. 4, c. 31, distinguished between the case where the woman was quick and was not quick with child, and under both acts the woman must have been pregnant at the time. See R. v. Scudder, 3 C. & P. 605, 14 E. C. L.; 1 Moo. C.C. 216. The terms of the repealed statute 7 Will. 4 & 1 Vict. c. 85, s. 6, were "with intent to procure the miscarriage of any woman," omitting the words "being then quick with child," etc.; under which it was held that it was immaterial whether the woman is or is not pregnant, if the prisoner, believing her to be so, administers the drug, or uses the instrument, with the intent of producing abortion. R. v. Goodall, 1 Den. C. C. 187. Acc. R. v. Gaylor, Dears. & B. C. C. 288. Under the present statute the case is expressly provided for.

Proof of the intent. The intent will probably appear from the other circumstances of the case. That the child was likely to be born a bastard, and to be chargeable to the reputed father, the prisoner, would be evidence to that effect. Proof of the clandestine manner in which the drugs were procured or administered would tend to the same conclusion.1

The statute is satisfied if the person who supplies the thing intends it to be used for the purpose of procuring abortion, though the person to whom it was supplied had no intent to use it for any such purpose. R. v. Hillman, L. & C. 343; 33 L. J., M. C. 60.

1Intent may be shown by evidence that the defendant published a circular three years previously tending to show that he was engaged in the business of procuring abortions. Weed v. People, 56 N. Y. 628.

indicted for setting fire to an outhouse) had set fire to and burnt part of a building of the prosecutor, situated in the yard at the back of his dwelling-house. The building was four or five feet distant from the house but not *joined to it. The yard was inclosed on all sides, *292] in one part of the dwelling-house, in another by a wall, and in a third by a railing, which separated it from a field, and in the remaining part by a hedge. The prosecutor kept a public-house, and was also a flax-dresser. The buildings in question consisted of a stable and chamber over it, used as a shop for the keeping and dressing of flax. It was objected, that this was part of the dwelling-house, and not an outhouse; but the prisoner having been convicted, the judges were of opinion that the verdict was right. It was observed that though, for some purpose, this might be part of the dwelling-house, yet that in fact it was an outhouse. R. v. North, 2 East, P. Č. 1021. The following case was decided upon the words of the same statute: The prisoner was indicted in some counts for setting fire to an outhouse, in others to a house. The premises burned consisted of a schoolroom, which was situated very near to the house in which the prosecutor lived, being separated from it only by a narrow passage about a yard wide. The roof of the house, which was of tile, reached over part of the roof of the school, which was thatched with straw; and the school, with a garden and other premises, together with a court which surrounded the whole, were rented of the parish by the prosecutor at a yearly rent. There was a continued fence round the prem ises, and nobody but the prosecutor or his family had a right to come within it. It was objected for the prisoner that the building was neither a house nor an outhouse within the repealed statute, 9 Geo. 1 c. 22; but the judges were of opinion that it was correctly described either as an outhouse or part of a dwelling-house, within the meaning of the statute. R. v. Winter, Russ. & Ry. 295; 2 Russ. Cri. 911, 5th ed. The following case, upon the construction of the same word, arose on an indictment under the 7 & 8 Geo. 4: The place in question stood in an inclosed field, a furlong from the dwelling-house, and not in sight. It had been originally divided into stalls, capable of holding eight beasts, partly open and partly thatched. Of late years it was boarded all round, the stalls taken away and an opening left for cattle to come in of their own accord. There was neither window nor door, and the opening was sixteen feet wide, so that a wagon might be drawn through it, under cover. The back part of the roof was supported by posts, to which the side boards were nailed. Part of it internally was boarded and locked up. There was no distinction in the roof between the inclosed and the uninclosed part, and the inhabitants and owners usually called it the cow-stalls. Park, J., did not consider this an outhouse within the statute; but reserved the point for the opinion of the judges. Six of the judges were of opinion that this was an outhouse within the statute; but seven of their lordships being of a contrary opinion, a pardon was recommended. R. v. Ellison, 1 Moody, C. C. 336. See also Hilles v. Inhab. of Shrewsbury, 3 East, 457; R. v. Woodward, 1 Moody, C. C. 325.