Arson

Criminal Law. The burning of a dwelling or property of another with malice.

Under Model Penal Code § 220.1, a person is guilty of arson if he starts a fire or causes an explosion with the purpose of (1) destroying a building or occupied structure of another; or (2) destroying or damaging any property, whether his own or another’s, to collect insurance for such loss. See also People v. Beach, 429 Mich. 450 (1988) (“The offense of arson is defined as follows: ‘Any person who wilfully or maliciously burns any dwelling house, either occupied or unoccupied, or the contents thereof, whether owned by himself or another, or any building within the curtilage of such dwelling house, or the contents thereof, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 20 years.'”); Commonwealth v Carthon, 467 Pa. 73 (1976) (“The offense of arson is defined [as]: ‘Whoever, willfully and maliciously, sets fire to or burns, or causes to be burned, or who aids, counsels, or procures the burning of any dwelling house . . . whether the property of himself or of another, is guilty of arson.’ In order to prove that arson has been committed, the prosecution must establish beyond a reasonable doubt (1) that there was a fire, (2) that it was willfully and maliciously set, and (3) that the defendant was the guilty party.”).

“The offense of arson is complete whenever the actor starts a fire with the requisite culpable mental state, whether or not damage of any kind actually occur.” Mosher v. State, 901 S.W.2d 547 (Tex. App. 1995)

Arson is a single offense that may be committed in different ways. In several jurisdictions, the crime of arson is categorized into first, second, and third degrees.  The first degree arson includes the burning of an inhabited dwelling-house in the nighttime.  The second degree arson includes the nighttime burning of a building other than a dwelling-house, but situated with reference to a dwelling-house so as to endanger it.  The third degree arson includes the burning of any building or structure not the subject of arson in the first or second degrees, or the burning of property, his own or another’s with intent to defraud or prejudice the insurer of that property.

The applicable penalties for arson depend on the severity of the injury. In California, for example, arson that causes great bodily injury is a felony punishable by imprisonment in the state prison for five, seven, or nine years. Arson of inhabited structure or property is punishable by three, five, or eight years. Arson of a structure or forest land is punishable by two, four, or six years. Arson of property with specific exceptions is punishable by 16 months or two or three years. See People v. Shiga, 34 Cal.App.5th 466 (2019).

In Hamilton v. State, 676 S.W.2d 120 (Tex. App. 1984), the court held that arson is a crime of violence per se. The court reasoned:

One who starts a fire or causes an explosion with intent to destroy or damage a building, habitation or vehicle necessarily exerts a physical force — the fire. (Although the oxidation reaction is, strictly speaking, chemical in nature, the fire surely possesses the “capacity to . . . cause physical change,” see American Heritage Dictionary of the English Language, “force”, definition No. 1, p. 513 (1982). That force is exerted “so as to . . . damage” by definition of the required accompanying intent, and this is true regardless of whether or not the object of the offense is attained by actual destruction of, or damage to, the target of the arson.

Id. at 121.

---

Encyclopedia Britannica, 11th Edition (1910-1911). *historical*

ARSON (from Lat. ardere, to burn), a crime which has been described as the malicious and voluntary burning of the house of another (3 Co. Inst. 66). At common law in England it is an offence of the degree of felony. In the Roman civil law arson was punishable by death. It appears early in the history of English law, being known in ancient laws by the term of boernet. It is mentioned by Cnut as one of the bootless crimes, and under the Saxon laws was punishable by death. The sentence of death for arson was, says Stephen (Commentaries, iv. 89), in the reign of Edward I. executed by a kind of lex talionis, for the incendiaries were burnt to death; a punishment which was inflicted also under 656the Gothic institutions. Death continued to be the penalty at least down to the reign of King John, according to a reported case (Gloucester Pleas, pl. 216), but in course of time the penalty became that of other common-law felonies, death by the gallows. It is one of the earliest crimes in which the mens rea, or criminal intent, was taken special notice of. Bracton deals at length with the mala conscientia, which he says is necessary for this crime, and contrasts it with negligentia (f. 146 b), while in many early indictments malice aforethought (malitia praecogitata) appears. Arson was deprived of “benefit of clergy” under the Tudors, while an act of 8 Henry VI. c. 6 (1429) made the wilful burning of houses, under particular circumstances, high treason, but acts of 1 Ed. VI. c. 12 (1547) and 1 Mary (1553) reduced it to an ordinary felony. The English law concerning arson was consolidated by 7 & 8 Geo. IV. c. 30, which was repealed and re-enacted by the Malicious Damage Act 1861.

The common-law offence of arson (which has been greatly enlarged by the act of 1861) required some part of the house to be actually burnt; neither a bare intention nor even an actual attempt by putting fire in or towards it will constitute the offence, if no part was actually burnt, but the burning of any part, however trifling, is sufficient, and the offence is complete even if the fire is put out or goes out of itself. The burning must be malicious and wilful, otherwise it is only a trespass. If a man by wilfully setting fire to his own house burn the house of his neighbour also, it will be a felony, even though the primary intention of the party was to burn his own house only. The word house, in the definition of the offence at common law, extends not only to dwelling-houses, “but to all out-houses which are parcel thereof, though not adjoining thereto.” Barns with corn and hay in them, though distant from a house, are within the definition.

The different varieties of the offence are specified in the Malicious Damage Act 1861. The following crimes are thereby made felonies: (1) setting fire to any church, chapel, meeting-house or other place of divine worship; (2) setting fire to a dwelling-house, any person being therein; (3) setting fire to a house, out-house, manufactory, farm-building, &c., with intent to impose and defraud any person; (4) setting fire to buildings appertaining to any railway, port, dock or harbour; or (5) setting fire to any public building. In these cases the act provides that the person convicted shall be liable, at the discretion of the court, to be kept in penal servitude for life, or for any term not less than three years (altered to five years by the Penal Servitude Acts Amendment Act 1864), or to be imprisoned for any time not exceeding two years, with or without hard labour, and, if a male under sixteen years of age, with or without whipping. Setting fire to other buildings, and setting fire to goods in buildings under such circumstances that, if the building were thereby set fire to, the offence would amount to felony, are subject to the punishments last enumerated, with this exception that the period of penal servitude is limited to fourteen years. The attempt to set fire to any building, or any matter or thing not enumerated above, is punishable as a felony. Russell says (Crimes, p. 1781) that the term building is no doubt very indefinite, but it was used in 9 & 10 Vict. c. 25, s. 2; and it was thought much better to adopt this term and leave it to be interpreted as each case might arise, than to attempt to define; as any such attempt would probably have failed in producing any expression more certain than the term “building” itself. In R. v.Manning, 1872 (L.R. 1 C.C.R. 338), it was held that an unfinished house was a building within the meaning of the act. The setting fire to crops of hay, grass, corn, &c., is punishable by penal servitude for any period not exceeding fourteen years, but setting fire to stacks of the same, or any cultivated vegetable produce, or to peat, coals, &c., is regarded as a more serious offence, and the penal servitude may be for life. For the attempt to commit the last two offences penal servitude is limited to seven years. Setting fire to mines of coal, anthracite or other mineral fuel is visited with the full measure of penalty, and in the case of an attempt the penal servitude is limited to fourteen years. By the Dockyards, &c., Protection Act 1772 it is a felony punishable by death wilfully and maliciously to set fire to any of His Majesty’s ships or vessels of war, or any of His Majesty’s arsenals, magazines, dockyards, rope-yards, victualling offices or buildings therein, or any timber, material, stores or ammunition of war therein or in any part of His Majesty’s dominions. If the person guilty of the offence is a person subject to naval discipline, he is triable by court-martial, and if found guilty, a sentence of capital punishment may be passed. The Malicious Damage Act 1861, s. 43, also includes as a felony the setting fire to any ship or vessel, with intent to prejudice any owner or part owner of the vessel, or of any goods on the same, or any person who has underwritten any policy of insurance on the vessel, or upon any goods on board the same.

In Scotland the offence equivalent to arson in England is known by the more expressive name of fire-raising. The crime was punishable capitally by old consuetudinary law, but it is now no longer capital, and may be tried in the sheriff court (50 & 51 Vict. c. 35, s. 56). Formerly the public prosecutor had the privilege of declining to demand capital punishment, and he invariably did so. Wilful fire-raising, which is the most heinous form of the crime, requires the raising of fire, without any lawful object, but with the deliberate intention of destroying certain premises or things, whether directly by the application of fire thereto, or indirectly by its application to something contained in or forming part of or communicating with them; also the intention to destroy premises or things of a certain description (much as mentioned above); and such premises or things must be the property of another than the accused. Wicked, culpable and reckless fire-raising differs from wilful fire-raising in that the fire is raised without the deliberate intention of destroying premises or things, but while the accused was engaged in some unlawful act, or while he was in such a state of passion, excitement or recklessness as not to care what results might follow from his acts.

United States.—The same general principles apply to this crime in American law. In some states by statute the intent to injure or defraud must be shown,e.g. when the property is insured. In New York one who wilfully burns property (including a vessel or its cargo) with intent to defraud or prejudice the insurer thereof, though the offence of arson is not committed, is punishable by imprisonment for not more than five years (N.Y. Pen. Code, ss. 575, 578). There must be an intent to destroy the building (ibid. s. 490; California Code, s. 447). An agreement to commit arson is conspiracy (ibid. s. 171). Killing a person in committing the crime of arson is murder in the first degree (ibid. s. 183); this is so in California, even where the crime is merely an attempt to commit arson (Cal. Pen. Code, s. 189). Explosion of a house by gunpowder or dynamite is arson (Texas Pen. Code, art. 761), but a charge of arson by “burning” will not be sustained by proof of exploding by dynamite, even though part of the building is burnt by the explosion (Landers v. State [Tex.], 47 S.W. 1008).