The opinion of the Court was drawn up by
Siiepley J.
— The statute, 1825, c. 312, provided, “thatif any persons shall wilfully and maliciously injure or destroy any building or other fixture, not having the consent of the owner thereof,” he may on conviction be punished by fine or imprisonment. This indictment alleges in the first count, that the accused “ beat in the windows and broke the glass of a building, being a dwellinghouse, the property of one Daniel W. Jackman,” and that he had not the consent of the owner therefor. In the second count, the house is alleged to be the property of Jacob Butterfield.
The testimony proved, that Jackman was in possession of the house under a parol agreement to occupy it for one year, when the same was injured. It is contended, that this was not sufficient .proof of the allegation in the indictment, that Jackman was the owner. The rule of law appears to be, that possession is sufficient evidence for that purpose, unless it be that of a servant merely, who is occupying as such Tor another. Where one was indicted for burning the house of another, it was decided, that a tenant, who set fire to the house of his landlord before his term expired, was not guilty of burning the house of another. Brieme’s case, Leach, 195. In the case of the People v. Van Blarcum, 2 Johns. R. 105, who was indicted for burning the county court house and jail, alleged to be the dwellinghouse of the jailer, who by permission of the sheriff, lived with his family in a part of the building, and under the same roof covering the court house and jail, the Court said, it was sufficient proof of the allegation, that it was the jailer’s dwellinghouse, that it was his actual dwelling at the time of the burning.
Another exception taken to these proceedings is, that the jury returned a general verdict of guilty after having been instructed, that there was no sufficient proof to sustain the second count; and after having separated and dined, they were asked, whether they found the accused guilty on both counts, and they answered, that they found him guilty on the first and not guilty on the second. After the jurors have separated and there has been an opportunity for others to converse with them after verdict, to operate upon their judgments, prejudices, or fears, to induce them, or some of them, to give a different account or explanation of.it, there would be great danger in permitting new inquiries to be made and explanations to be given ; ■ and such a course is not considered as regular, or authorized by our practice. It was decided in Little v. Larrabee, 2 Greenl. 37, where the error in the verdict was not formal, but material, that it should be corrected by granting a new trial, or in some other mode than by the explanatory affidavits of the jurors. And there is little difference in the danger attending it, whether the explanation be made in open Court, or by the affidavits of the jurors. But it is not necessary in this case to set aside the verdict for the purpose of correcting any error in finding or in receiving it. The accused has not been injured by limiting the finding to the count, on which he might have been properly found guilty. And if it had not been so limited, the attorney for the State might have cured the difficulty by entering a nolle prosequi of the second count. Comm. v. Tuck, 20 Pick. 356.
The question proposed to be put to Jackman has reference to a matter quite foreign to the issue; and a Court is not obliged to permit the introduction even on a cross-examination of a collateral fact, which may occasion a new and distinct issue.
It was at one time considered, that an infant, under the age of nine years could not be permitted to testify. Rex v. Travers, Stra. 700; Comm. v. Hutchinson, 10 Mass. R. 225. And that between the ages of nine and fourteen years it was within the discretion of the Court to admit or not, -as it should or should not be satisfied of the infant’s understanding and moral sense. Rex v. Dunnel, East’s P. C. 442. It was finally determined in Brazier’s case, ib. 444, on consultation between all the Judges, that a child of any age, capable of distinguishing between good and evil, might be examined on oath. And Roscoe says, this has been the established rule in all civil and criminal cases since. Roscoc’s Cr. Ev. 94. The credit due to the statements of such a witness is submitted to the consideration of the jury, who should regard the age, the understanding, and the sense of accountability for moral conduct, in coming to their conclusion. In this case the witness was thirteen years of age, and the counsel for the accused was permitted, on the cross-examination, to introduce for the consideration of the jury the necessary information on these points. And it could not be material to the accused, whether such information was elicited before the examination in chief or afterward. The examination before was only necessary for , the information of the Judge, who appears to have been fully satisfied of the propriety of admitting the witness.
The counsel relies with more confidence on the exception to that part of the charge, which states, “ that it was not incumbent on the government to prove, that there was no consent of the owner,” and that the burthen of proof was on the accused to show, that he had such consent. A number of cases are cited, which decide, that in a declaration, or an indictment, on a statute, there must be an averment, that the act was done without consent, when, as in this case, it is a substantial part of the offence. And it is thence inferred, that it is the duty of the prosecutor to introduce some direct testimony to prove it. This inference does not appear to be a legal one, or to be authorized by the decided cases. It is true, that the jury must be satisfied of the truth of all the material allegations, before they can be authorized to find a verdict of guilty. But the testimony introduced to prove one averment may be such as to raise a strong presumption, that another averment is also true. A person might be found cutting or tearing down a house, or breaking in the windows, under such circumstances, that every man of common experience would conclude, that he was .not violating any law or duty. While under a different state of facts and circumstances, the conclusion would be equally satisfactory, that he must be acting in violation of both. And in the latter description of cases, there is nothing unreasonable or illegal in requiring, that one, who would avoid the effect of such a presumption, should introduce testimony to rebut it. In Jelfs v. Ballard, 1 B. & P. 468, Mr, Justice Buller says, “ the plaintiff must state in his scire facias every thing, that entitles him to recover; but it is a very different question, what is to be proved by one party, and what by the other.” And Heath J. says, “ it is a common thing in actions on the game laws for the plaintiff in his declaration to negative all the qualifications, which would exempt the defendant from the penalties of those laws; but it lies on the defendant to prove, that he comes within any of them.” All the Judges appear to have been of the same opinion, when such a case was pending in their own Court, although two of them thought, that the opposite rule prevailed in convictions before a magistrate. Rex v. Stone, 1 East, 639. In the case of the United States v. Hayward, 2 Gall. 485, the information alleged an importation of goods from Nova Scotia, “ in some vessel not being a neutral vesseland it was decided, that the burthen of proof was on the claimant, to show, that the goods were imported in a neutral vessel, if he would avoid the effect of an importation from that place, A.nd Mr. Justice Story in that case states the general rule to be, “ where the negative does not admit of direct proof, or the facts be more immediately within the knowledge of the defendant, he is put to his proof of the affirmative.” Starkie, in substance, states the rule to be, that a negative is not required to bo proved by the plaintiff, except where the law presumes the affirmative. I Stark. Ev. Met. Ed. 362 to 365. And that presumption arises only where the charge involves a criminal neglect of duty. But in Rex v. Rogers, 2 Camp. 654, on an indictment founded on the 42 Geo. 3, c. 107, for coursing deer in enclosed grounds, wdthoul the consent of the owner, Lawrence J. held, that it wras necessary on the part of the prosecution to prove, that the owner had not given his consent. Jn Harrison’s case, reported in Roscoe’s Cr. Ev. 56, on an information for selling ale without license, it was held, that the informer was not bound to produce evidence that the accused had no license. In Gening v. the Stale, 1 McCord, 573, on an indictment for selling spirituous liquors without license, it was decided, that the burthen of proof was on the defendant to show, that he had a license, In Smith v. Moore, 6 Greenl. 274, where the declaration was adjudged to be defective for the omission of the allegation, that the neglect was “ without just excuse,” the case of Little v. Thompson, 2 Greenl. 228, where there was an omission of the allegation, “ without the consent of the owner,” is referred to, and the Court say, “for though the omitted averments should have been in both cases inserted; yet in both also the burden of excusing proof would have been thereby thrown upon the defendants.” In the case now un der consideration it was a matter peculiarly within the knowledge of the accused, whether he had obtained the consent of the owner; and in such case, the general rule, the weight of authority, and the. declared law in this State, authorized the charge of the District Judge.
Exceptions overruled.