— The appeal is from a conviction of arson, in setting fire to or burning the jail of Wilcox County. The appellant was confined in jail under a charge of assault with intent to murder, together with Nettles, who was under indictment for rape. The two attempted in concert to break prison, by burning a hole through the floor of their apartment. They had burned the floor about six inches deep, but not entirely through, when they were detected by the jailer and others, who extinguished the fire. While committing the burning, they controlled the fire with water saved from their allowance. The questions involved in the charges given and refused are: Whether the burning for the purpose of escape, and without the intention of consuming the building, would constitute arson; and whether, both being prisoners, and each endeavoring to escape, they can be said to have assisted each other to escape, which is made a felony by R. C. § 3573.
The indictment was maintained under R. C. § 3698, which declares that “ any person who wilfully sets fire to, or burns, any church, meeting-house, court-house, town-house, college, academy, jail, or other building erected for public use,” is guilty of arson in the second degree. The setting fire to, or burning, was sufficiently done. Any destruction of the material of the. house, no matter how slight, is a burning within the prohibition. Graham v. The State, 40 Ala. 659. Was it done wilfully?. This term means less than maliciously, and more than intentionally or designedly. It means unlawfully, and to some extent wickedly. A setting fire to a house for any unlawful purpose cannot be innocent, though the purpose is not accomplished. If a person from the outside should set fire to a house, with the intention of burning a hole through which he might enter and steal, he would not be guilty of burglary, unless he succeeded in making the hole and entering. Unless he would be guilty of arson, this dangerous crime could scarcely ever be proved, because the perpetrator would truly have some other purpose to be accomplished by the burning.
Breaking jail, by the common law, is a felony, or a misdemeanor, according as the cause of the imprisonment belongs to *33the one grade or the other. 2 Bish. Crim. Law, § 1031. We have no statute declaring and punishing the offence of breaking -jail by one charged with felony, but not convicted. As a misdemeanor, which it includes, it is punishable under B,. C. § 3754, recognizing and providing the punishment of all misdemeanors at common law not enumerated in the Penal Code. Imprisonment for crime gives no immunity to the prisoner to commit crime. He remains subject to all of the restraints imposed on other persons. The least privilege of escape conceded to a prisoner would carry with it the right to use any means he could command. It is a misdemeanor if, without any obstruction, he merely walk away. 2 Bish. Crim. Law, § 1063. The causeless setting fire to a house, by a person of responsible mind, is arson, because the necessary intention is presumed from the act. The same act, done with the intention of committing a crime, whether felony or misdemeanor, must also be held to be arson, because the very recklessness of the deed supplies the wilful intention.
2. The case is aggravated, so far as the intention is concerned, if the defendant and Nettles can be said to have assisted each other, for then they were in the commission of a felony. R. C. § 3573. Is it possible to separate the idea of assistance from the single design of each to effect his escape ? If so, any combination of prisoners to effect their escape, no matter how formidable, or how destructive in its results, is no more criminal than the single effort of one who could, perhaps, have accomplished no mischief. In The People v. Rose (12 Johns. R. 339), the defendant attempted to escape by breaking the prison, in consequence of which a fellow-prisoner, confined for felony, was enabled to escape. The court said the case was clearly within the mischief which .the statute was made to prevent. The indictment was for aiding a prisoner confined for felony to escape.
The two authorities cited by the appellant, State v. Mitchell (5 Iredell, 350), and People v. Catteral (18 Johns. 115), assert the doctrine; that if a prisoner in a jail set fire to' it with the design of merely breaking a hole through to effect his escape, and not of burning it down for that purpose, it is not arson. Bishop dissents from such a proposition, holding it not necessary that the intent should be to commit a felony. 2 Bish. Crim. Law, § 41.
All of the authorities agree, that where the firing is done with the intention of committing any felony, it is arson. Our Penal Code very properly omits to graduate the offence of breaking jail by the character of the offence for which the accused is imprisoned, because the mischief is the same no matter by whom committed. The guilt or innocence of this defendant *34is not dependent upon whether he was in the commission of a different felony or not. He intentionally and designedly set fire to the jail, in order to accomplish an unlawful purpose, and consequently the burning was 'wilfully done. It would not be safe to graduate his offence by the extent of the burning he intended to do, because, as far as intention constitutes the crime, the criminality is the same whether the house is burned slightly or consumed. The lives and property of other persons cannot -be made dependent upon his supposition of how much burning he can do without consuming the house.
3. The coiirt administered to the jury the proper oath. R. C. § 4092. ■ _ ■
_ 4. The indictments introduced were the best evidence of the causes for which the accused were imprisoned. They were also relevant in proof of the corrupt intention with which the • burning was done.
The judgment is affirmed.