§ 486. Arson in first degree defined.-A person who willfully burns, or sets on fire, in the night time, either

1. A dwelling-house in which there is, at the time, a human being; or

2. A car, vessel, or other vehicle, or a structure or a building other than a dwelling-house, wherein, to the knowledge of the offender, there is, at the time, a human being;

Is guilty of arson in the first degree.

See section 637, post.

Application.—This section, as well as the next two sections, applies to willful acts of burning and setting on fire of buildings. People v. Fanshawe, 47 St. Rep., 341; 65 Hun, 91; 8 N. Y. Cr., 345; 19 N. Y. Supp., 868.

Arson in the first degree may be committed by one in burning his own dwelling house. Shepherd v. People, 19 N. Y., 537.

Re-enactment. This section is a practical re-enactment of the provisions of section 9, title 1, chap. 1, part 4 of 2 Revised Statutes. People v. Fanshawe, ante. Definition. This section and the following two sections define arson in its three degrees. Id.

Section 490, post, contains no part of the definition of arson in either degree. Id.

In defining the crime of arson in the first degree, the legislature intended to protect the whole building usually occupied by a person lodging therein at night, and all the occupants and lodgers therein without regard to the manner in which it may be used, or the number of occupants. Levy v. People, 19 Hun, 386.

At common law, the offense was defined as the willful and malicious burning of another's house. People v. Fanshawe, 50 St. Rep., 2; aff'g 47 id., 331; 65 Hun, 85; 8 N. Y. Cr., 337.

Prior to the enactment of the Code, arson was defined by statute in this state and divided into four degrees. Id. In the Penal Code, the fourth degree has been dropped out, and all acts amounting to arson are concisely stated in three sections, defining three degrees of the crime. Id.

Essentials. In order to establish the crime of arson in the first degree, the only elements necessary to be proved are that the prisoner willfully set the premises on fire in the night time, and that the premises were a dwelling house in which there was at the time a human being. People v. Fanshawe, 47 St. Rep., 335; 65 Hun, 84; 8 N. Y. Cr., 336.

Dwelling house. As to what is a "dwelling house," see Levy v. People, 80 N. Y., 327.

Tenement house.-Any occupant of an apartment in a tenement house, by causing the fire to be set in the night on his own premises, so as to break out in the absence of all persons from such apartments, is guilty of arson in the first degree. Levy v. People, 19 Hun, 387.

Intent.-A design to produce death is not necessary to constitute the offense under this section, either at common law or under the statute. People v. Orcutt, 1 Park., 252.

It was never supposed that the particular intent or motive that prompted the act of setting fire to a dwelling house in the night time, in which human beings were lodged, was a necessary element of the crime, so long as the act itself was willful and malicious. People v. Fanshawe, 50 St. Rep., 2; aff'g 47 id., 331; 65 Hun, 89; 8 N. Y. Cr., 343.

An intent to destroy the building set on fire was not a necessary element of the crime as it existed at common law, or under any statutory definition prevailing in this state prior to the enactment of the present Penal Code. Id. The fact that defendant set fire to his room in a lodging house for the purpose of destroying his personal effects, in order to defraud an insurance company, and not to destroy the building insured, does not change the character of the offense and constitutes arson in the first degree. Id.

Knowledge. Whether the person charged with the offense had knowledge that the building burned had usually or at any time been occupied by persons lodging therein, is immaterial. People v. Orcutt, 1 Park., 252.

Test. This section has made the fact that some human being is in the house at the time it is fired, the test of the peril, and draws no distinctions as to its imminency. Woodford v. People, 3 Hun, 315.

Arson is an offense against property. Woodford v. People, 3 Hun, 315. It is aggravated when, in addition to the destruction of property, human life is thereby in danger of destruction. Id. The fact that a party may or does escape with his life, does not prove that it was not in peril. Id.

Where the occupant of the house was aroused by the alarm before the fire had reached her house, and, instead of leaving at once, remained a few moments to collect her things, during which the fire caught her house, the incendiary is guilty of arson in the first degree. Id.

Whether the person is asleep or awake, in or out of bed, or whether escape is practicable before the building actually kindles, is not made material by the terms of this section. Woodford v. People, 62 N. Y., 132.

A felonious setting fire to one building, which actually communicates to and burns another, is sufficient to convict the incendiary of arson in burning the latter building, irrespective of an intent to do so. Id.; Hennesey v. People, 21 How., 239.

§ 487. Arson in second degree.-A person who,

1. Commits an act of burning in the day time, which, if committed in the night time, would be arson in the first degree; or 2. Willfully burns, or sets on fire, in the night time, a dwelling-house wherein, at the time there is no human being; or

3. Willfully burns, or sets on fire, in the night time, a building not inhabited, but adjoining or within the curtilage of an inhabited building, in which there is, at the time, a human being, so that the inhabited building is endangered, even though it is not in fact injured by the burning; or

4. Willfully burns, or sets on fire, in the night time, a car, vessel, or other vehicle, or a structure or building, ordinarily occupied at night by a human being, although no person is within it at the time;

Is guilty of arson in the second degree.

See notes under preceding section.

Under the former statute, it was necessary to be shown that the building set on fire actually touched an inhabited dwelling, or that it was within the curtilage thereof. Peverelley v. People, 3 Park., 59.

Setting fire to a prison by a prisoner, merely for the purpose of effecting

his own escape, was held, in People v. Cotteral, 18 Johns., 115, not to amount to the crime of arson, nor to a willful burning of an inhabited dwelling house, within the meaning of the first section of chap. 29 of 1 N. R. L., 407; 2 R. S., 657, 666-7.

$488. Arson in third degree. burns, or sets on fire, either

A person who willfully.

1. A vessel, car or other vehicle, or a building, structure, or other erection, which is at the time insured against loss or damage by fire, with intent to prejudice the insurer thereof; or

2. A vessel, car, or other vehicle, or a building, structure, or other erection, under circumstances not amounting to arson in the first or second degree;

Is guilty of arson in the third degree.

See notes under section 486, ante.

Re-enactment.-Section 5 of 3 R. S., 2483 (7th ed., is now embodied in this section of the Penal Code.

Object.-This section aims to punish offenses against all insurers, and is not limited to such as are natural persons, or organized under the laws of this state. Carncross v. People, 1 N. Y. Cr., 520; 17 W. Dig., 384.

Definition. This section gives a new definition of the crime of arson in the third degree, expressed in broad and comprehensive language, which, in the judgment of the legislature, might be construed to include acts which before did not amount to arson, and consequently section 490, post, was passed as a precaution against such result. People v. Fanshawe, 50 St. Rep., 4; aff'g 47 id., 331; 65 Hun, 85; 8 N. Y. Cr., 335.

See People v. Fanshawe, 65 Hun, 83, 84, 91, 98; 47 St. Rep., 341; 8 N. Y. Cr., 345; 19 N. Y. Supp., 868.

$489. Arson, how punished. Arson is punishable as follows:

1. In the first degree, by imprisonment for a term not exceed ing forty years.

2. In the second degree, by imprisonment for a term not exceeding twenty-five years.

3. In the third degree, by imprisonment for a term not exceed ing fifteen years. [Am'd, chap. 549 of 1897; to take effect Sept. 1, 1897.]

This amendment changed the term of imprisonment from a term not less than ten to a term not exceeding forty years.

Am'd by chap. 662 of 1892.

This amendment inserted, in subd. 1, the words "any term;" omitted, in subd. 2, the statement of the minimum limit of punishment, and substituted for the words "not more than," in subd. 3, the words "not exceeding."

§ 490. Intent to destroy building requisite.-The burning of a building under circumstances which show beyond a rea sonable doubt that there was no intent to destroy it, is not arson. Application. This section has no reference to the crime of arson as de fined in sections 486-488, ante, but refers to another and distinct class of crimes-namely, non-willful as distinguished from willful acts. People v. Fanshawe, 65 Hun, 90, 8 N. Y. Cr., 343; 47 St. Rep., 340; 19 N. Y. Supp., 868.

Intent. It should not be so construed as to give to the crime of arson a new definition or make it depend, not upon the willful burning or setting on fire of a building, but on the presence or absence of an intent to destroy it at the time it was set on fire.

Id.

Upon the trial of an indictment under section 486, ante, this section is avail

able to a defendant in the event that he can produce evidence to show that there was no intention to destroy the building. Id.

Object. The purpose of this section was not to change the nature of the crime of arson in the first degree. People v. Fanshawe, 50 St. Rep., 4; aff'g, 47 id., 331; 65 Hun, 89; 8 N. Y. Cr., 344.

This section was enacted from abundant caution, in order to exclude from the operation of the previous sections, in which the different degrees of arson are defined, acts which never constituted the offense, and, possibly, some acts which did. Id.

It was intended, by this section, to exclude all cases of setting fire to or burning a house by negligence, mischance, or accidently while in the commission of a mere civil trespass; or while engaged in the commission of a felony, where there was no intent to set the fire or burn the building. Id.

This section does not qualify the definition of arson in the first degree, as expressed in section 486, ante, but limits and qualifies the broad language of section 488, ante, which defines arson in the third degree. Id.

§ 491. Contiguous buildings.-Where an appurtenance to a building is so situated with reference to such building, or where any building is so situated with reference to another building that the burning of the one will manifestly endanger the other, a burning of the one is deemed a burning of the other, within the foregoing provisions, against any person actually participating in the original setting on fire, as of the moment when the fire from the one communicates to and sets on fire the other.

See Woodford v. People, 62 N. Y., 117.

The word "contiguous," when used in a policy of fire insurance in reference to a building, means in close proximity, in actual close contact. Arkell v. Commerce Ins. Co., 69 N. Y., 193.

§ 492. "Night time" defined.-The words "night time," as used in this chapter, include the period between sunset and sunrise, and every building or structure, which shall have been usually occupied by persons lodging therein at night, is a dwelling-house within the meaning of this chapter.

§ 493. "Building," defined.--Any house, vessel, or other structure, capable of affording shelter for human beings, or ap purtenant to, or connected with a structure so adapted, is a "building" within the meaning of this chapter.

See section 504, post.

It was deemed necessary, in this section, to declare that the word building included a railway car, vessel, etc. Rouse v. Catskill & N. Y. S. Co., 59 Hun, 82; 35 St. Rep., 493; 13 N. Y. Supp., 128.

§ 494. "Inhabited building." defined.--A building is deemed an "inhabited building" within the meaning of this chapter, any part of which has usually been occupied by a person lodg ing therein at night.

Dwelling-house.-Any building is a "dwelling-house," which is in whole or in part usually occupied by persons lodging therein at night, though other parts, or the greater part, may be occupied for an entirely different purpose, People v. Orcutt, 1 Park, 252, even though it may not be such in the ordinary and popular acceptation of that term. Id.

A jail was held to be an inhabited dwelling-house, within the meaning of People v. Cotteral, 18 John., 115.

the act, 2 R. S., 657, 666, 7.
A building divided into a
by several tenants, who hold
the meaning of the statute.

large number of apartments separately occupied under distinct leases, is a dwelling-house within Levy v. People, 19 Hun, 386.

$495. Ownership of building.-To constitute arson it is not necessary that another person than the defendant should have had ownership in the building set on fire.

Where a part of the house is occupied by a tenant habitually lodging therein at night, and the residue by the owner, the building is well described in the indictment as the dwelling-house of such tenant. Shepherd v. People, 19 N. Y., 537.

CHAPTER II.
Burglary.

SECTION 496. Burglary in first degree defined.

497. Id., in second degree.

498. Id., in third degree.

499. "Break," defined.

500. "Night time," defined.

501. "Enter," defined.

502. "Dwelling-house," defined.

503. Dwelling-houses, etc., when deemed separate.

504. "Building," defined.

505. Unlawfully entering building.

506. Burglar punishable separately for crime in building.
507. Burglary, how punished.

508. Misdemeanor to make or mend burglars' tools, etc.

8496. Burglary in first degree defined.-A person who, with intent to commit some crime therein, breaks and enters, in the night time, the dwelling-house of another, in which there is at the time a human being,

1. Being armed with a dangerous weapon; or

2. Arming himself therein with such a weapon; or

3. Being assisted by a confederate actually present; or

4. Who, while engaged in the night time in effecting such entrance, or in committing any crime in such a building, or in escaping therefrom, assaults any person;

Is guilty of burglary in the first degree.

Dwelling-house.-The chamber of a guest at an inn is not his dwellinghouse, but that of the landlord. Rodgers v. People, 86 N. Y., 330.

Where dwelling-house is occupied by a servant as the house of his master, and in his master's business, it is his master's dwelling-house, and it must be so described in an indictment for burglarious entry. Rodgers v. People, 86 N. Y., 364.

Where the owner of a building divided the lower part into a store and barroom with no communication between them, and carried on business in them, and he lived over the store and leased the part over the bar-room, which could be entered only from the street, it was held in Quinn v. People, 11 Hun, 336; aff'd 71 N. Y., 561, that the bar-room was part of the dwelling-house, and that the breaking into it for the purpose of committing larceny constituted burglary in the first degree.

See People ex rel. Reilly v. Bell, 24 St. Rep., 301; 3 N. Y. Supp., 813.