02. Case Reading Assignment

02. Case Reading Assignment - Supreme Court of Errors of...

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1 Supreme Court of Errors of Connecticut The State v. McGowan 20 Conn. 245 (1850) This was an information for setting fire to and burning a dwelling-house. The prisoner pleaded Not guilty; on which issue the cause was tried, at Hartford, January term, 1850. On the trial, it appeared, that the building burned was built by Norman Warner , and designed for a dwelling-house; was constructed in the usual manner of a dwelling-house, in all particulars; and was finished, except that it was not painted, as it was intended to be, and the glass was not set in the sash which had been placed in the upper half of one of the outer doors. The building stood by itself, and was not appurtenant to any other building; but it had not been occupied. Upon these facts the prisoner's counsel claimed, and asked the court to instruct the jury, that the prisoner could not be convicted. The court did not so instruct the jury; but left the question whether the building was a dwelling-house, for their determination, as a matter of fact. The jury found the prisoner guilty; and he thereupon moved for a new trial. 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 building, 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.
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2 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-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 . 461. (15 E. C. L . 266.) 2
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This note was uploaded on 10/22/2008 for the course LAW 101 taught by Professor Shellenberger during the Fall '08 term at Temple.

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02. Case Reading Assignment - Supreme Court of Errors of...

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