
    Commonwealth vs. John Betton.
    On the trial of an indictment for the malicious burning of a building, a hoard from the building in question being produced in evidence, and exhibited to the jury, as the only part of the building burnt, it was held, that whether the same had been so affected by fire, as to constitute a burning within the legal meaning of the term, was a question of fact, to be determined by the jury, upon the evidence before them, as in ordinary cases.
    If the defendant, in a criminal case, is furnished with a copy of the mdictment against him, which is imperfect, in omitting to add the words, “ foreman of the grand jury,” to the name of that officer, and the defendant proceeds to trial, without objecting to the sufficiency of such copy, he will be held thereby to have waived his objection.
    The defendant was indicted and tried in the municipal court for the wilful and malicious burning of an outhouse, called a privy, situated in the town of Chelsea.
    
      At the trial, before Bigelow, J., the attorney for the commonwealth introduced evidence, that the defendant collected together a lot of chips, paper, and other combustible materials, which he placed in the privy, and there set them on fire ; that they were placed on the floor of the privy and close to the side of the building, which was made of planed boards ; that the fire after it was lighted burned for a short time, and was then extinguished by water being thrown upon it.
    To prove the burning of the privy, the commonwealth’s attorney produced in court and placed before the jury a piece of the board, which formed the side of the privy, and against which the combustible materials had been placed. This piece of board had been sawed off, and was the only part of the building which was alleged to have been burned. The jury examined the board during the trial, and it was taken to the jury room, when they retired to deliberate upon their verdict.
    The defendant asked the presiding judge to instruct the jury, that there was not a sufficient ‘burning, in law, to warrant the defendant’s conviction, under the statute. But the judge refused so to instruct the jury, and on this point instructed them, in substance, as follows : —
    “ That the question whether the privy was burned was a question of fact, to be determined by the jury on the whole evidence in the case applicable to this point; that to constitute a burning, within the meaning of the law, it was not necessary that any part of the building should be wholly consumed, or that the fire should have any long continuance; that the offence would be complete, although the fire should go out of itself, if it had once begun to burn, and had actually burned a portion of the building, however small that portion might be; that it was not enough to show, that the wood of the building had been discolored or scorched by the fire ; but that the jury must be satisfied, that some portion of the wood of the building had been actually on fire, and had been burned and consumed thereby ; and if they were satisfied, that the wood of the privy had been on fire, so that some part thereof had been burned and consumed, and the substance and fibre of the wood actually destroyed, it would be their duty to convict the defendant.”
    The jury found the defendant guilty; and he thereupon alleged exceptions to the instructions aforesaid.
    The defendant moved in this court, that in case the exceptions should be overruled, a new trial might be granted him, for the following reasons : —
    1st. Because there was no burning proved on the trial sufficient in law to authorize his conviction.
    2d. Because the verdict was against the law and evidence.
    3d. Because he was not furnished with a true copy of the indictment, and the indorsements thereon, as by law was his right; the writing purporting to be a copy, and which was delivered to him by the clerk of the municipal court, being signed “ Fred. U. Tracy,” with no designation of the capacity in which he signed: whereas the original indictment was signed “ Fred. U. Tracy, Foreman of the Grand Jury.”
    
      O. íl. P. Green, for the defendant.
    
      Clifford, attorney-general, for the commonwealth.
   Shaw, C. J.

At the trial of this indictment, in the court below, the commonwealth’s attorney, in connection with other evidence for the prosecution, produced a piece of the side of the building, alleged to have been burned, which had been taken from its place and brought into court; and which was offered as exhibiting the whole of the part burnt. The presiding judge ruled, that it was a question of fact for the jury to decide, whether the building was actually burnt; and accompanied his ruing with definitions of combustion or actual burning, which were singularly accurate and precise.

The exception taken by the defendant is, that the judge was incorrect, in leaving it to the jury to decide, as a question of fact, whether any part of the building was burnt; and that he should, as he was asked to do, instruct the jury, that there was not a sufficient burning, in a legal sense, to warrant the defendant’s conviction.

It is difficult to perceive the ground of this exception. That the piece of wood alleged to be burnt, was capable of being brought into court in order to be inspected by the court and jury, does not make the question, whether it was burnt or not, the less a question of fact. The judge can instruct the jury what actual burning is, as was done, in the present case. But whether the fire took effect on the fibre of the wood, must depend on an inference of fact to be drawn from its condition, as indicated by its being discolored, blackened, scorched, charred, or consumed. The inference may be perfectly obvious to the eye both of judge and juror, but the question is, who shall draw it.

Suppose the question to be, whether a bank note produced in evidence is counterfeit or not. The judge may inspect and examine it, and comment on the evidence ; but the jury must decide. In a case where the question was on the performance of a contract to manufacture shingles, a quantity of pieces of wood was brought into court; and the judge was so clearly of opinion, from inspection, that they were chip» and not shingles, that he declined to submit the question to the jury. This court, on a revision of the case, were of opinion, that it was a question of fact for the jury, and set the verdict aside. Morton v. Fairbanks, 11 Pick. 368. It was not the duty, nor was it within the province, of the judge, to direct upon inspection, that the wood had or had not been burnt.

A motion is now made in this court for a new trial on several grounds: 1st, That there was no burning proved ; 2d, That the verdict was against law and evidence. The first ground has been already settled, and properly settled, by the jury, who were the proper tribunal, and have passed upon it. The second ground is not open to the defendant in this court, in any other manner than as it is presented by the bill of exceptions.

A third ground is, that the defendant had not a perfect copy of the indictment; because in the copy furnished him, the official designation of the office of foreman was not added to his signature. A new trial will only be granted, to remedy some error or mistake injurious to the rights of the defendant. If the defendant had any doubts as to the correctness of his copy, and had made his objection earlier, it might have been easily remedied by the clerk. He has waived it by pleading in chief, and going to trial without objection to this wholly immaterial omission.

Exceptions and motion for a new trial overruled.  