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Common Law Arson
By the mid-eighteenth century, common law arson was well established as the malicious and willful burning of the house of another by day or by night (Coke, p. 66). The common law viewed arson, like burglary, as a crime against the security of habitation rather than a crime against property. A house was defined for both crimes as the dwelling house of the occupant, in addition to the buildings located within the curtilage. Curtilage meant the yard or space of ground near the dwelling house, contained in the same enclosure and used in connection with it by the household, and the parcel of buildings or structures contained therein. Barns were generally included in the curtilage. It was quite foreseeable that a fire in any building within the curtilage could spread to the dwelling and endanger the occupants. Thus, a sufficient threat to quiet possession occurred even if the actual dwelling place escaped harm.
Since arson protected habitation, the burning of an unoccupied house did not constitute arson: there could be no arson if the fire occurred before the first resident moved in, after the dwelling was vacated, or in a period between residents. On the other hand, a dwelling retained its occupied status during the temporary absence of the occupant; it was unnecessary that he be present in the dwelling at the time of the burning.
The use of the building determined its status. A permanency of dwelling was necessary. Burning a place where transients stayed, such as a hotel, did not constitute arson under the common law. Neither did the burning of institutions, such as jails or hospitals, unless someone also lived in the building as a permanent resident.
Since arson was viewed as a crime against the security of habitation, the building burned had to be that of another. It was not arson to burn the house one occupied, whether or not the occupant owned it, even if the burning threatened the lives of others in the house. The burning of one’s own dwelling to collect insurance did not constitute common law arson. It was generally assumed in early England that one had the legal right to destroy his own property in any manner he chose.
Arson was legally regarded as a heinous and aggravated offense both because it threatened human life and the security of habitation and because it evidenced a moral recklessness and depravity in the perpetrator. Arson was thus a capital offense until more lenient statutes were enacted in the nineteenth century.
Although it was not common law arson to burn one’s own house, it was a common law misdemeanor (‘‘houseburning’’) if the burning was intentional and the house was situated in a city or town, or, if beyond those limits, was still so near other dwellings as to create danger to them. Any malicious destruction of, or damage to, the property of another not amounting to common law arson constituted a common law misdemeanor known as malicious mischief.
The common law required an actual burning or ignition of some part of the building, at least to the extent of charring the wood. A mere smoking, scorching, or discoloration of the wood was insufficient. The general rule was that a slight charring, no matter how small, was sufficient.
Since the common law required that the fire damage the structure, setting fire to personal property within the building would not constitute arson unless the fire spread to the building itself. An attempted burning did not constitute arson. Similarly, it was no crime under the common law to prepare a building for a fire.
To have established the corpus delicti of arson at common law, the proof must have shown that there had been a burning of a structure or property protected by law, and that the fire had resulted from the criminal act of some person. It also had to be shown that the defendant was the criminal agency. The common law presumed that all fires resulted from accident, negligence, or natural causes. Therefore, direct or circumstantial evidence that the fire was of incendiary origin and that the defendant was the guilty party was required.
The requisite mens rea consisted of a willful and malicious intent to burn. The word willful meant the arsonist must have started the fire intentionally. The requisite intent could be viewed as the general, unlawful purpose to damage or destroy certain property. While the intent could be inferred from the act, more than negligence had to be shown. In some cases negligent burnings could be punished as a lesser offense, such as negligently burning prairie land or timberland.
Malice was an essential element of common law arson, and had to be established independently of any showing of willfulness. Malice was generally construed as a desire to injure the victim of the unlawful act, and was readily inferred from the nature of the act or the circumstances surrounding it, so that liability generally resulted if the burning were intentional. Motive was not an element of arson, although motive was often used to infer intent, such as overinsuring the property. The existence of a motive may have helped establish the corpus delicti of arson by showing both that the fire was intentional in origin and that the defendant was culpable. Conversely, the absence of a motive may have made proof of the essential elements less persuasive.
Direct evidence of arson is frequently unavailable since the crime is ordinarily committed under the cover of darkness, clandestinely, and in a manner intended to divert suspicion. Thus, circumstantial evidence, and reasonable inferences based thereon, were generally used to establish the crime and the culprit.
Owing to the narrow confines of arson under the common law, statutes were enacted in every state beginning in the early 1800s (as, for example, in the Acts Passed at the First Session of the Legislative Council of the Territory of Orleans. . .. p. 416), greatly expanding the crime to include the criminal burning of almost any type of property. The statutory scheme remained far from uniform through the early 1900s, but statutes generally protected property as well as habitation. The burning of one’s dwelling constituted arson, whether or not the intent was to collect insurance. A few of the earliest statutes imposed a harsher penalty if the burning occurred at night. Modern statutes take note of the time of the arson only in determining the grade of degree of the crime. Statutory arson also included situations in which chattels (personal effects) were burned in a building without spreading to the structure. A few statutes followed the common law distinctions between dwelling house and other buildings. Some distinguished between occupancy and vacancy.
Statutes commonly divide arson into various degrees. First-degree arson is directed at the endangering of life rather than of property, whereas the lesser degrees relate to the value of the damaged property, the motive, or the type of property burned. The penalties differ according to the degree of arson.
A typical Alabama statute provided that arson of the first degree consisted of the willful burning of a dwelling or structure in which a person was present at the time, or of any inhabited dwelling. Arson of the second degree included the willful burning of a public building, manufacturing establishment, storage place, vessel, or uninhabited dwelling. Third-degree arson consisted of the willful burning of a house or vessel, bridge gate or causeway (Code of Ala., §§ 3289, 3290, 3293 (1923)). Many other statutes provide for aggravated arson, which covers that form of arson which does or could result in an injury to persons, and simple arson, which is all other arson.
Statutes generally require the act to be ‘‘willful’’ or ‘‘malicious,’’ or some combination of these terms. Regardless of the word or phrase used, the interpretations have generally been in accordance with the common law.
Under the common law, damage caused by an explosive could not be considered arson since there was no burning. Many states have solved this problem by statutorily defining arson to include injury to property resulting from the use of an explosive, whether or not an actual burning occurs. Most modern statutes include ‘‘explosive’’ in the means of destruction or damage performed by arsonists (N.Y. Penal Law (McKinney) §§ 150.05—150.10, 150.20 (1999)).
Model Arson Statutes
The Model Arson Law, proposed in the early 1920s by the National Board of Fire Underwriters, enlarges criminal liability for preliminary behavior by punishing not only what would be attempted arson at common law, but also the preparation of a building for burning. In addition, a separate category is established for the intentional burning of any property insured against loss or damage by fire with the purpose of injuring or defrauding the insurer. This provision applies to the accused’s own property. It should be noted that while arson requires only a general intent, arson to defraud requires a showing that the burning was specifically for the purpose of collecting insurance. Accessories to arson are liable as principals under the Model Arson Act.
The American Law Institute’s Model Penal Code provisions on arson have not been widely followed (§ 220.1). Under these proposals arson is defined as the destruction of a ‘‘building or occupied structure’’ or the damaging of any property with intent to collect insurance. The Code’s provisions differ from those of the abovementioned Model Arson Law in several ways. First, they include explosions as a category of arson. Second, they insert in the definition of intent a requirement that the act be done ‘‘with the purpose of destroying property.’’ Third, they exclude the actor’s own building or structure, unless it was insured. Finally, they unequivocally designate as arson the burning of any property, chattels as well as buildings, with the purpose of collecting insurance.
In addition to the crime so defined, the Code provides lesser felony penalties for reckless burnings or explosions that threaten bodily injury or damage to buildings or occupied structures of another. Other types of property damage by fire are treated as misdemeanors.
In 1978 several insurance associations prepared a model arson penal law, which is similar in several respects to the Model Penal Code. In the proposal a first-degree felony offense of ‘‘aggravated arson’’ encompasses cases of death or bodily injury resulting from arson. The secondand third-degree offenses resemble the Model Penal Code provisions, and include unoccupied structures. Specific penalties are provided for the damage of any property when the purpose is to defraud the insurer.
Consistent with the historical trend toward expansion, Congress enacted the Anti-Arson Act of 1982, Pub. L. No. 97-298, § 2(c), making it possible for the federal government to prosecute for the first time arsons involving nongovernmental property. The Act prohibits damage or destruction by fire (or explosives) of ‘‘any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.’’ 18 U.S.C. 844(i) (1994). Federal circuit courts are divided on how broadly to construe the jurisdictional predicate of ‘‘affecting interstate . . . commerce,’’ but some authority exists for extending it to the destruction of private residences based solely on their owners’ purchase of natural gas that originated in another state or their securing of mortgages from out-of-state lenders. (United States v. Jones, 178 F.3d 479, 480 (7th Cir. 1999) (residential).)
- Acts Passed at the First Session of the Legislative Council of the Territory of Orleans Begun and Held at the Principal in the City of New-Orleans on Monday the Third Day of December in the Year of Our Lord One Thousand, Eight Hundred and Four and of the Independence of the United States the Twentyninth. Published by Authority New-Orleans. Printed by James N. Bradford, Printer to the Territory, 1805.
- American Law Institute. Model Penal Code: Tentative Draft No. 11. Philadelphia: ALI, 1960.
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