If to constitute arson it is necessary that the building burned be a dwelling-house in the same sense, as in a charge of burglary, then clearly this building was not the dwelling-house of George H. Wheaton. To constitute such dwelling-house, it must be a place of the residence of the party named. 1 Leach, 185; Foster, 77; 4 Black. Com. 424.
The house may, for the time being, be in fact without inmates, and the occupiers temporarily absent, but there must be the purpose of return. But it cannot be the dwelling-house of an individual before he has begun to occupy it. 2 Leach, 271; 2 East, P. C. 498.
The facts stated in the bill of exceptions show that this was an unoccupied building, in the broadest use of that term, and that it had at no previous time been occupied by George H. Wheaton.
The only question that can be raised here is, whether there be any distinction between arson and burglary in the character of the building. The definition of arson, as given in 3 Inst. 66, and 1 Hale, P. C. 566, is, the wilful and malicious burning “ the house ” of another; whereas the definition of burglary, as given by the same authorities, is the breaking and entering “ the mansion-house ” of another. So, also, it is said that in an indictment for arson, there is no occasion to describe the building as “ a dwelling-house ” as in burglary, but the term “ house” will suffice. 1 Hale, P. C. 567. But these offences are now in England statute offences.
Whatever may have been the common law on the subject, yet in this commonwealth, where these crimes are statute offences, they both clearly are of the same character in this respect, and both require the offence to be committed upon a dwelling-house. It was so by the St. of 1784, c. 58, and again by St. 1804, c. 131, and is required by the Rev. Sts. c. 126, § 1. In all these statutes, the crime punishable as the aggravated offence is the malicious and wilful burning of “ a dwelling-house.” This crime has formerly been punished capitally, and the severity of the punishment, as well as the language of the statute, fully sustain us in the view we have taken of the nature of the offence, and that to *480convict of the aggravated species of arson punishable under Rev. Sts. c. 126, § 1, the dwelling-house burnt must be an occupied house; a dwelling-house in which some one lives, using the term in a liberal sense, and treating the cases of mere temporary absence as substantially a continued occupation. Exceptions sustained; new trial ordered.