The opinion of the Court was drawn up by
Davis, J.The indictment in this case charges that the defendant, “ in the day time, maliciously, &c., set fire to a certain barn,” &c., and that, “ by the kindling of such fire, said barn was then and there burnt and consumed.”
*329It is argued that the indictment is founded upon the R. S., c. 119, § 4; “whoever willfully and maliciously burns any building,” &c. And, it is said, that “ setting fire” to a building is not the same as “ burning” it.
The indictment was evidently drawn from a form based on the Massachusetts statute of 1804, c. 131, which was followed by our statute of 1821; “ if any person shall willfully, &c. set fire to any building, and, by the kindling of such fire, such building shall bo burnt,” &c. But, if it is the same to “ set fire to” a building as to “burn it,” the indictment is sufficient, assuming that it is founded on the fourth section of the chapter referred to.
It is not necessary, to. constitute arson, that any part of the building should be consumed. If there is actual ignition of any part, however small, though the fire immediately go out of itself, the offence is committed. 1 Hale, P. C. 568; 1 Gabbett, 75. It can hardly be contended that “ setting fire to” a building signifies any less. The words “ set fire to” and “ burn” are generally understood as equivalents. 1 Bishop’s Grim. Law, § § 188, 189. And it is very evident that they are used synonymously in our statutes.
But if it were otherwise, it would not affect this case. We are satisfied that the indictment is well drawn upon the third section of chapter 119 of the Revised Statutes. The “ of-fence” referred to in the second clause is that of “ setting fire to” any building previously mentioned. This offence is of two grades. If the building set fire to is a meeting-house, court-house, jail, town-house, college, academy, or other building erected for public use, and it is burnt in the night time, it is an offence of the higher grade. So, if it is a store, shop, office, barn, or stable, and is within the curtilage of a dwellinghouse, so that such dwellinghouse is endangered, and it is burnt in the night time, it is an offence of the higher grade. But if any such building, of either class, is burnt in the day time, it is an offence of less magnitude. Or, if it is a building of the class last named, and is without the curtilage of any dwellinghouse, and no dwellinghouse is endangered there*330by, it is a less offence, though burnt in the night time. Such, we believe to be the plain and obvious construction of the statute.
It follows that, if the building is alleged to have been burnt in the day time, it is not necessary to allege whether or not it was within the curtilage of a dwellinghouse; for that fact is entirely immaterial.
The building which was burnt is alleged, in the indictment, to have been the property of William D. Cook and Sylvester Cook, It was necessary to prove this ownership as alleged. 3 Greenl. Ev. §.§ 10, 57. It was proved, at the trial, to have been in the actual occupation and possession of the persons named. This was sufficient evidence of the allegation in the indictment. R. S., c. 131, § 10. The defendant was not injured by the admission of the records.
Exceptions overruled. Judgment on the verdict.
Tenney, C. J., Hathaway, Cutting, May, and Goodenow, J. J., concurred.