Common Law Arson

Common Law Arson

The definition given in the Introduction divides into four elements, and the prosecution must prove all of them: malice, a burning, of a dwelling, that another uses as a dwelling.¹ Each element is a separate requirement, so a defendant whose conduct supplies three of the four has not committed common law arson, however dangerous or blameworthy the fire. That all-must-be-met structure is the main thing to carry into the sections that follow, each of which takes one element in turn. This section shows how the four fit together and how to run a fact pattern against them.

The elements fit together because each one screens out a different kind of conduct, and what remains is the harm the offense exists to punish. Malice is the mental element, and it separates a blameworthy fire from one that simply happened. The burning and dwelling elements together confine the offense to actual fire damage to a place where people live, which excludes a fire that never damages the structure and a fire set in a building nobody uses as a home. The fourth element asks who uses the structure as a dwelling, and the answer comes from habitation rather than from title, because the offense protects the security of the people who live and sleep in the structure and does not turn on who owns it.² The orientation toward occupants is an old one. In Lacy v. State, an 1862 Wisconsin decision, the court read a statute on night-time arson of a dwelling house as creating separate grades of the offense, and it treated the lawful presence of a person inside the house as a circumstance that greatly aggravated the crime.³

The four-element test applies only where the common law definition governs. Modern statutes commonly define arson more broadly, reaching the burning of buildings generally and, in some versions, a person's own property burned to collect insurance.⁴ Some statutes also punish arson without defining the word, and those adopt the common law definition by reference.⁵ When a problem asks about common law arson, or about a statute of that kind, every element remains in play, including the dwelling requirement.

Exam stems rarely contest all four elements. The facts usually make three of them obvious and build the problem around the fourth, so the work is to find which element is being tested. Steps four and five are where most stems turn, because they require reading how the building is used instead of what the stem calls it. The usual error at the last step is treating ownership as decisive. A landlord who sets fire to the house that a family rents and lives in has burned a dwelling that another uses as a dwelling, whatever the deed says, while an occupant who burns the house in which he alone lives has not.⁶

The warehouse fire fails at the dwelling element, so there is no common law arson, even though the defendant's mental state and the physical damage match the first scene.⁷ The only fact that moved the answer is how the building was used. That is the habitation theme at work: the same deliberate fire and the same char damage produce a different result once no occupant's security is at stake. Whether a broader modern statute would reach the warehouse is a separate question, which the later comparison with the Model Penal Code takes up.

Malice

Malice is the mental element of common law arson, and the word is a trap because ordinary English uses it for spite. In everyday speech, malice means ill will or wickedness of heart, so a reader who meets the word in the definition naturally looks for a grudge, a quarrel with the occupants, or a motive such as revenge. The legal meaning is built differently. It centers on an intent, without justification or excuse, to do a wrongful act, and it also reaches reckless disregard of another person's legal rights, while the ill-will sense belongs mostly to nonlegal usage.⁹ The word also shifts from crime to crime, since the malice in common law arson is not the malice in "malice aforethought" for murder, and a definition learned for one offense cannot be carried over to the other.¹⁰

With that warning in place, the rule can be stated affirmatively. Common law arson does not require hatred, ill will, a particular motive, or a specific intent to burn a dwelling.¹¹ Malice exists when the defendant intends the structure to burn, knows that it will burn, or consciously disregards an obvious and substantial risk that it will burn.¹² Courts compress the same idea into two limbs: an intent to burn, or an act done in circumstances that make a burning plainly and strongly likely.¹³ The first two situations describe a defendant who is aware that the fire will happen, and the third describes a defendant who is aware that it may happen and goes ahead regardless. What falls outside all three is a fire caused without that awareness, because accidental burning resulting from mere negligence does not satisfy the mental element.¹⁴

The common law does not phrase these categories in the Model Penal Code's vocabulary, but that vocabulary shows where the line runs. A person acts recklessly when subjectively aware of a substantial risk and consciously disregarding it, and acts negligently when unaware of the risk even though a reasonable person would have noticed it.¹⁵ Conscious disregard of an obvious and substantial risk therefore sits on the aware side of that line, and mere negligence sits on the unaware side. The one variable that moves a fire from the first side to the second is whether the actor was aware of the risk of burning.

The line falls where it does for reasons that can be taken apart. Excluding negligence protects the grading of the offense: arson is a serious felony, and if carelessness were enough, every house fire started by a forgotten candle or a dropped cigarette would be punished as a deliberate burning. That result would erase the difference between a person who chose to gamble with the occupants' safety and a person who failed to notice a danger, and awareness is what makes the first person blameworthy. Indifference to ill will and motive rests on a separate ground. The harm arson targets is the threat to people living in a structure, and that threat is the same whether the fire was set from hatred or for profit, so a rule keyed to motive would track nothing about the danger. The third route to malice exists because an actor who knows a fire is likely and proceeds has made the same choice about the occupants' safety as one who wants the fire, and a rule limited to desire would let that actor escape by claiming never to have wanted a burning.

Intent, the first route, is the easy case. In United States v. Jones the defendant tossed a Molotov cocktail through a window into a home in Fort Wayne that his cousin owned and occupied, and the blaze severely damaged the house.¹⁶ An incendiary device has no purpose except to make a structure burn, so intent to burn is established without any inquiry into why the defendant wanted that result. The federal question that case decided belongs to a later section, and for present purposes it supplies only a clear example of an intentional burning.

The three scenes differ in what the actor knew, and awareness is the fact the element tests. Neither knowledge nor conscious disregard depends on the actor's feelings toward the occupants, and the last variation shows that wanting the fire is also unnecessary.

The third route repays its own illustration, because the defendant who never wanted a fire is the case students most often miss. A customer, angry that the owner of a convenience store will not sell him cigarettes after hours, backs his truck into the store's gas pumps on purpose to destroy them. The owner lives in an apartment above the store. A spark ignites the gasoline, and the blaze burns down the store and her apartment. The customer wanted to wreck the pumps and not to burn anything, but he intentionally did an act that posed an obvious and serious risk of a destructive fire, which satisfies malice and makes him guilty of arson of the owner's dwelling. His anger at the owner does no work in that analysis. The result turns on the conduct that made a fire foreseeable.

The awareness requirement has one wrinkle. Many courts ordinarily demand that the defendant be subjectively aware of the risk, but they find malice anyway when the failure to notice the risk is caused by voluntary intoxication. A homeowner who drank to work up his nerve to burn his own house for the insurance money, and who then, too drunk to tell the houses apart, set a fire under the back porch of the look-alike neighbor's house twenty feet away, was guilty of common law arson even though he put the fire out after the porch charred slightly. Had he done what he intended, he would still have endangered the neighbor's house, and his drunken mistake did not negate malice.

When an exam stem asks whether a fire was set with malice, the question to put to the facts is what the defendant was aware of. The most common error is reading malice as ill will, which sends the analysis hunting for a grudge or a motive the element never required. The opposite error treats every careless fire as arson, which overlooks that negligence leaves the actor unaware of the risk.

Burning by Fire

The second element of common law arson, the burning, carries a requirement about means before it carries any requirement about amount: the damage must be caused by fire.¹⁸ The element names a physical cause, and the cause is what the common law cared about. Damage that results only from an explosion, with no fire, does not constitute arson at common law, however violent the blast and however thoroughly it wrecks an occupied house.¹⁹ How much fire damage is enough is a separate question for the next subsection. Here the only question is whether fire did the damaging.

The offense is defined by its means because the common law built arson around the particular danger that fire poses to a place where people live. Once a fire is set it spreads without further effort from the actor and reaches rooms the actor never chose or saw, so the occupants face a threat that grows after the deliberate act is over. The common law tied the offense to that danger and drew its line at fire. Other deliberate destruction of someone else's property was left to a lesser offense, and an explosion that starts no fire sits outside arson for that reason. The result is a gap that can look odd, since a blast may destroy far more than a small fire would, yet the definition asks what means the defendant used and not how much harm followed. The Model Penal Code later closed the gap by reaching a person who starts a fire or causes an explosion, which is why the difference matters only where the common law definition governs.²⁰

Whatever falls outside arson is not necessarily lawful, because the damage lands in the offense designed for it. Malicious mischief is the common law misdemeanor of intentionally destroying or damaging another's property, and it picks up the deliberate destruction that arson leaves behind.²¹ Modern definitions of criminal damage to property mark the same boundary from the other side, because they cover injury or destruction of property by means other than fire or explosion.²² Fire and explosion are therefore the territory of the arson statutes, and every other means of damaging property goes to the property-damage offenses. A defendant whose blast, with no fire, wrecks a house has committed malicious mischief as to the property, a misdemeanor, rather than the felony of common law arson.

The three scenes differ in one variable, which is whether fire itself damaged the structure. The collapsed walls in the second scene are wreckage from the blast and do not count toward the element, while the charred joists in the third scene are damage that fire caused.²³ Mixed patterns of this kind are resolved by asking what fire did, and the destructiveness of the explosion that preceded it does not enter the analysis.

Fire is also necessary without being sufficient, and Texas v. Johnson shows the other side of the line. At a political demonstration, Johnson poured kerosene on an American flag and set it on fire, yet the charge was desecration of a venerated object under a Texas statute and not arson.²⁴ A flag is not a dwelling, so a burning of that kind cannot satisfy the remaining elements, and the prosecution used an offense written for that conduct. The point is only that a burning of personal property is not common law arson, since the case was decided on other grounds that are not part of this chapter.

Exam stems use bombs often, and they are built to tempt the reader into treating a devastating blast as a burning. The trap is treating a destructive explosion as a burning, which ignores that the common law element asks about fire and not about the scale of the destruction. The sound approach is to find the sentence in the stem that says what physically damaged the structure. If fire damaged it, the element is met whatever else happened. If only a blast damaged it, the element fails at common law, and the stem may be inviting a comparison with the Model Penal Code, whose coverage of explosions would reach the same conduct.

Degree of Damage

Once fire is established as the means, the remaining question under the burning element is how much damage the fire must do. The threshold is low. The prosecution need not prove that the structure was destroyed or even extensively damaged, so a fire that is put out within minutes can still complete the element.²⁶ What the element asks about is the condition of the material. The fire must damage the fibers of the wood or other combustible material of which the structure is made, and any such damage, including minimal charring (wood or similar material burned into and blackened by the fire itself), is sufficient.²⁷

The other side of the line is scorching, which means blackening by smoke or superficial discoloration from heat. Scorching does not satisfy the element, however widely it spreads across a wall or ceiling.²⁸ The two kinds of damage prove different things. Smoke residue and heat discoloration show that a fire burned near the structure, but they leave the structure's own material intact, so nothing in the building has yet been consumed. Charred fibers show that the building itself has begun to burn, and a fire that has started consuming a structure can go on spreading to the rooms where people sleep, which is the danger the offense exists to address. Setting the threshold at the first damage to the fibers therefore marks the moment the habitation itself is in jeopardy, without requiring the occupants to wait for a total loss before the law responds.

The two scenes differ in one variable, which is whether the fire damaged the material itself. The size of the affected area never enters the analysis, so a small charred spot completes the element while a fully blackened room does not.

On an exam stem, the tempting move is measuring the burning by how much of the building looks damaged. Stems often describe a blackened wall or a smoke-filled room to suggest a serious fire, and a reader who counts the visible damage will reach for the wrong answer. The sound approach is to find the sentence that says what happened to the material. If the wood or other combustible material charred, the burning element is met even though the fire was quickly extinguished. If the stem mentions only smoke blackening or discolored paint, the element fails, and with it the charge of common law arson.

Dwelling

The third element of common law arson identifies what must be burned. For purposes of arson, a dwelling has the same meaning it has in burglary: a structure that people regularly use for sleeping.³⁰ A reader who already knows the burglary definition can carry it over unchanged, because the two offenses use one word for one idea. The test asks how people regularly use the structure, so a family's house remains a dwelling while the family is away on vacation, and a shop that closes every evening never becomes one.

The sleeping-use definition follows from what the offense protects. Common law arson is an offense against the security of habitation, and ownership or the value of the property does not define it.³¹ Fire is most dangerous to people who are asleep, because sleepers cannot see flames or smell smoke and cannot get out before the blaze spreads through the rooms around them. A fire set in a place where people sleep therefore threatens lives in a way that a fire in an empty building does not. Defining the protected structure by sleeping use picks out the places where that danger is greatest, which is why the element never asks about the market value of the building or the name on the deed.

The common law did not confine the element to the house proper. It also reached an outhouse, meaning a separate building such as a barn or garage, that is appurtenant to the dwelling house or lies within its curtilage, the ground and buildings immediately around a home that the household uses for its domestic life.³² The extension is old, since the burning of a barn full of grain was already treated as a felony as early as 1220.³³ The reason is the same concern for the household. A fire in a building beside the house readily spreads to the house, and the people who live there rely on those buildings as part of their home, so a protection that stopped at the walls of the main house would leave the nearest source of danger uncovered. The sleeping test therefore applies to the house itself, and an outbuilding qualifies through its tie to that house, even though nobody sleeps in it.

Two limits follow from the same logic. Only real property is arsonable, which is the term for property of a kind that can support a charge of arson when it is maliciously burned, so movable goods such as furniture or a vehicle fall outside the offense.³⁴ A commercial building such as a store or warehouse, where no one regularly sleeps, is also outside it, because it does not present the danger to habitation that the offense addresses. Deliberate destruction of such property is not lawful, since it falls under the property-damage offenses discussed earlier, but it is not common law arson.

The scenes turn on a single variable, which is whether the structure is, or belongs to, a place where people regularly sleep. The value of the building, the extent of the damage, and the identity of the owner never move the answer on this element.

Exam stems often describe a burned office building or a burned warehouse, and the pull is toward assuming that any burned building satisfies the dwelling element. Most states have extended arson by statute to structures other than dwellings, and the Model Penal Code likewise reaches a building or occupied structure of another, which sweeps in the commercial building that common law arson excluded.³⁵ So the first step is to find out which definition governs. When the stem invokes the common law, or supplies statutory text limited to dwellings, an office building fails the element. When a stem is testing another issue, such as malice, it will often assume without saying so that the jurisdiction's arson law reaches non-dwellings, and the absence of a sleeper is then not a defense. The next subsection takes up the last element, which asks whose dwelling it must be.

Dwelling of Another

The last element of common law arson asks whose dwelling was burned, and the common law answers by looking at who lives there. The structure must function as a dwelling for someone other than the defendant, and legal title does not control that question.³⁸ The offense protects the security of habitation or occupancy, and it does not protect ownership as such.³⁹ That orientation follows from what fire does. A blaze in a home endangers the people inside, and those people are the occupants, whoever holds the deed. A tenant asleep in a rented house is as exposed to the flames as an owner asleep in an owned one, so a test keyed to title would sometimes protect the wrong person and leave the endangered one uncovered.

The element therefore cuts in two directions, and each direction has its own reason. Because title is irrelevant, an owner can commit arson by burning a dwelling that someone else occupies as a home, and the owner's rights over the property are no defense.⁴⁰ Because the question is occupancy by another, the same logic shields a sole occupant who burns the house where only that person lives. No other resident is in danger, so no one's habitation has been attacked. Joint title does not change this result, since title carries no weight on either side of the line: a house the defendant owns with a relative who lives elsewhere is still not the dwelling of another, because the only home in it is the defendant's.

The two scenes differ in one variable, which is whether anyone other than the defendant uses the structure as a home. The defendant holds title in both, and the answer still flips, which shows that ownership is not what the element measures.

The lone owner's escape from arson is narrower than it looks, because a fire does not stay where the defendant intended. When a person burns his or her own house and nearby dwellings face danger from the fire, the conduct falls within the separate common law misdemeanor of houseburning, which the next section takes up.⁴¹ If the flames actually consume a neighbor's house, that house is the dwelling of another, so the element is satisfied as to it, and the remaining question is whether the defendant's malice (intent, knowledge, or reckless disregard of an obvious risk of burning) reaches that burning.

Some modern statutes discard the limit altogether. A Maine arson statute, for example, covers the burning of a dwelling house "whether the property of himself or of another."⁴² Under language of that kind an owner who burns the home in which he lives can be charged with arson, so the gap that houseburning fills at common law does not arise. The statutory text in the stem therefore tells you which analysis to run.

The tempting error on an exam stem is reading "of another" to mean owned by another. A stem may emphasize that the defendant holds title, or that the defendant is a landlord, a co-owner, or the sole named owner on the deed, and each of those details is a distraction under the common law rule. The sound approach is to find the sentence that says who lives in the structure. If someone other than the defendant uses it as a home, the element is met even though the defendant owns it. If the defendant is its only occupant, the element fails at common law, and the stem is usually steering toward houseburning or a statutory variation instead.