the publication which is alleged to be libelous.10 Evidence to prove the truth of the charges made by the accused must come from witnesses who have a competent knowledge of the facts, acquired by their own observation. Hearsay is not admissible. Hence it is not allowable to prove that the matters referred to in the alleged libel were rumored about the neighborhood, and were accepted as the truth by persons who knew the party libeled.20 Where the statute permits the truth of the charges which are alleged to have been libelous to be proved in justification, any evidence which tends to prove their truth is relevant. The test of relevancy is whether the facts would be relevant if the truth or falsity of the charges were directly in issue in some legal proceeding either criminal or civil. For example, if the libel consists in charging the prosecuting witness with a crime, the relevancy of the evidence to prove the truth of the charge on the part of the accused would be determined by the answer to the question, would such evidence be relevant in a criminal prosecution brought against the prosecuting witness based upon the crime charged? Thus, proof of the commission of one crime is not relevant to prove in justification the truth of an allegation charg 19 State v. Wait, 44 Kan. 310, 24 the party libeled to prove the truth of Pac. 354. the charge. People v. Stokes, 24 N. Y. S. 727, 30 Abb. N. Cas. 200; State v. Bush, 122 Ind. 42, 23 N. E. 677; Commonwealth v. Snelling, 15 Pick. (Mass.) 337; State v. Lyons, 89 N. Car. 568; McArthur v. State, 41 Tex. Cr. 635, 57 S. W. 847. Contra, by statute in Texas. Manning v. State, 37 Tex. Cr. 180, 39 S. W. 118. In Texas, Penal Code, Art. 646; Missouri, Rev. St., § 3858; North Carolina, N. Car. Code, § 1113, and some other states slander, consisting of words, imputing unchastity to a woman, is good ground for an indictment. The mode of proof, except so far as the words uttered are oral and not written, is the same as in criminal libel. Burnham v. State, 37 Fla. 327, 20 So. 548. 20 Commonwealth v. Place, 153 Pa. St. 314, 26 Atl. 620; People v. Jackman, 96 Mich. 269, 55 N. W. 809; State v. Hinson, 103 N. Car. 374, 9 S. E. 552; State v. Butman, 15 La. Ann. 166; State v. Ford, 82 Minn. 452, 85 N. W. 217; State v. White, 7 Ired. (N. Car.) 180. Contra, Humbard v. State, 21 Tex. App. 200, 17 S. W. 126. In Commonwealth v. Snelling, 15 Pick. (Mass.) 337, 342, the court, by Shaw, C. J., said: "But how is this defense to be made? By proof of the truth of the matter, charged as libelous, not his belief of the truth, not his information, nor the strength of the authority upon which such belief was taken up." The accused will not be permitted to prove the general bad character of ing the witness with a distinct offense involving different acts on his part." After the accused has offered evidence to prove that his charge was true, the state must be permitted to meet this with proof tending to show that the charge was false. Where the libelous charge was that the prosecutor was dishonest, and the accused was permitted to show that he did not pay his debts and that he had to be sued; he was permitted to show his family and his means and other circumstances as explaining his inability to pay his debts and he may also testify how many times and for what reasons he was sued.22 "State v. Lomack, 130 Iowa 79, 106 X. W. 386. 22 State v. Keenan, III Iowa 286, 82 N. W. 792. CHAPTER XXVI. OFFENSES AGAINST HUMAN HABITATIONS. § 366. Arson-At common law and by statute-Evidence to show locality of building. 367. Proof of actual burning re- 368. Threats and declarations by 370. Evidence of preparation to 373. Proof of constructive breaking -Non-consent of ownerEvidence of ownership and value of property. 374. Correspondence of foot-prints with the foot-wear of the accused. 374a. Evidence obtained by trailing with bloodhounds. 375. Burglarious tools in the posses- 376. Other burglarious acts. 378. Presumption from the posses- § 366. Arson-At common law and by statute-Evidence to show locality of building.-The malicious or willful burning of the house or out-house of another, or the burning of any building, so situated as to endanger a dwelling-house, is arson at common law. This crime is sometimes graded by statute according to the degree in which it involves danger to human life. The malicious and intentional burning of one's own house, or of buildings which are not the subject of arson at common law, is sometimes 14 Bl. Com. 220; Kopcyznski v. State, 137 Wis. 358, 118 N. W. 863. 2 State v. Sarvis, 45 S. Car. 668, 24 S. E. 53, 55 Am. St. 806, 32 L. R. A. 647n. made arson by statute." The character of the dwelling or other building must be proved substantially as laid in the indictment.* A charge of burning a building is sustained though the proof shows that the building was not completed. So it has been held that a charge of burning a "house" is sustained by showing the burning of a gin set up on posts with the lower part thereof used for the engine and the upper part enclosed with walls. Whether a structure is or is not a building within the statute is a question of fact for the jury. The title or occupancy of the building need not be proved with the fulness which is necessary in actions involving the title or the right to possession. Description and proof by street and number, or by its proximity to well-known landmarks, is sufficient to sustain the venue. The ownership of the building need not be strictly proved, unless it is an essential element of the crime, as when one is indicted for setting fire to his own house." Any evidence tending to prove ownership in a civil action is competent. It has been held that ownership must be proved by the production of the deed, though apparently this is not the general rule.10 In another case a receipt for rent was received signed by the accused while in jail." Under a statute making it arson for one to burn his own property, proof that he 9 'People v. Handley, 100 Cal. 370, 34 Pac. 853; People v. Laverty, 9 Cal. App. 756, 100 Pac. 899; Heard v. State, 116 Tenn. 713, 94 S. W. 605. When ownership is relevant, it may be proved by a certified copy of a recorded deed, with oral evidence that the accused had made an oral lease, or had signed as owner. Commonwealth v. Preece, 140 Mass. 276, 278, 5 N. E. 494. 10 Goldsmith v. State, 46 Tex. Cr. Van Immons v. State, 29 Ohio 556, 81 S. W. Cir. Ct. 681. 710. "State v. Watson, 47 Ore. 543, 85 Caddell v. State, 50 Tex. Cr. 380, Pac. 336. 97 S. W. 705. had some estate therein is sufficient, though it be not proved that he owned all of it.12 12 14 § 367. Proof of actual burning required-Non-accidental character of fire-Proof of premises burned.-In order to prove the corpus delicti of arson, it is not sufficient merely to show a burning, which may have been the result of an accident. It must be proved beyond a reasonable doubt that the burning was not accidental, but was willfully and maliciously caused by some person who was morally responsible for his actions.13 For in arson the corpus delicti consists first in the burning of the premises described in the complaint and second in the fact that the burning was the result of the agency of the accused. If nothing appears in the evidence but the fact that a house was consumed by fire. it will be presumed that the fire was the result of accident, and it is for the state to overcome this presumption and to prove that the fire was willfully caused by the accused.15 At common law the actual burning of the whole or of some part of the house must be proved, though proof of the actual burning of the smallest part is sufficient. It need not be shown that the wood blazed, but proof that the wood or other inflammable material was charred, i. e., reduced to charcoal, and its identity destroyed, is always required. A mere discoloration or scorching black by smoke or heat is not enough.16 12 Jones v. State, 70 Ohio St. 36, 70 N. E. 952. 13 Winslow v. State, 76 Ala. 42; Jesse v. State, 28 Miss. 100, 109; Thomas v. State, 41 Tex. 27; Commonwealth v. Phillips (Ky.), 14 S. W. 378, 12 Ky. L. 410; Jenkins v. State, 53 Ga. 33; Brown v. Commonwealth, 87 Va. 215, 12 S. E. 472; Williams v. State, 125 Ga. 741, 54 S. E. 661; State v. Pienick, 46 Wash. 523, 90 Pac. 645, II L. R. A. (N. S.) 987; Ragland v. State, 2 Ga. App. 492, 58 S. E. 689. Proof of corpus delicti, see 68 L. R. A. 41, note; 16 L. R. A. (N. S.) 285, note. Burden of proof, see Elliott Evidence, § 2808; Burley v. State, 6 Ga. App. 776, 65 S. E. 816. "West v. State, 6 Ga. App. 105, 64 S. E. 130; Spears v. State, 92 Miss. 613, 46 So. 166. 15 Williams v. State, 125 Ga. 741, 54 S. E. 661; Ragland v. State, 2 Ga. App. 492, 58 S. E. 689; West v. State, 6 Ga. App. 105, 64 S. E. 130. Admissions and Confessions, see Elliott Evidence, § 2816. 16 State v. Hall, 93 N. Car. 571; Woolsey v. State, 30 Tex. App. 346, 17 S. W. 546. The opinion of a witness to the effect that he thought a house had been set on fire is not admissible. State v. Nolan, 48 Kan. |