Commonwealth v. Horrigan , 84 Mass. 159 ( 1861 )

Hoar, J.

The defendant was indicted for burning in the night time a building erected for public use, under Gen. Sts. c. 161, § 2. The court instructed the jury that if they found that the building was removed by the city of Charlestown, and afterwards fitted up as a school-house and engine-house, that would support the allegation in the indictment that the building was “ erected for public use ; ” and the only exception argued is to the correctness of this instruction.

The exception cannot be sustained. The removal of the building to a new position, and there fitting it up for its intended occupancy, was as much “ erecting ” it there as if all the materials had been brought there and put together. The use was a public use. The building was provided by the city in the discharge of a public duty, and was under the control of public officers. The purpose for which it was designed and occupied exposed it to the peculiar dangers attending public property, and thus brought it within the spirit as well as the letter of the statute. Such a building is not protected by the watchfulness which private interest excites, and the reckless and mischievous are not deterred from its destruction by any sense of sympathy with individual loss. Some of our school-houses are among the finest of our public buildings; and among the buildings which the statute especially enumerates are “ colleges” and “ academies.”

Noscitur a sociis.

Exceptions overruled.