Contra Costa Watch

• Chapter 5: Arson

This chapter deals with arson. It has only one section, §81, which defines arson, attempted arson, or conspiracy to commit arson, and provides a penalty of imprisonment for up to 25 years, the greater of the fine under this title or the cost of repairing or replacing any property that is damaged or destroyed, or both. It also provides that if the building is a dwelling or if the life of any person is placed in jeopardy, the penalty shall be a fine under this title, imprisonment for "any term of years or for life", or both.

Common law

Arson has four elements.

The elements are:

1. The malicious
2. burning
3. of the dwelling
4. of another

The malicious – for purposes of common law arson "malicious" means action creating a great risk of a burning. It is not required that the defendant acted intentionally or willfully for the purpose of burning a dwelling.

burning – at common law charring to any part of dwelling was sufficient to satisfy this element. No significant amount of damage to the dwelling was required. On the other hand mere discoloration from smoke was insufficient. Actual damage to the material from which the structure was built is required.^[6] Damage to surface coverings such as carpets and wallpaper is insufficient.^[6] Arson was not limited to the burning of wooden structures. Any injury or damage to the structure caused by exposure to heat or flame is sufficient.

of the dwelling – dwelling means a place of residence. The destruction of an unoccupied building was not considered as arson, "since arson protected habitation, the burning of an unoccupied house did not constitute arson." At common law a structure did not become a residence until the first occupants had moved in and ceased to be a dwelling if the occupants abandoned the premises with no intention of resuming their residency.^[7] Dwelling includes structures and outbuildings within the curtilage.^[8] Dwellings were not limited to houses. A barn could be the subject of arson if it was occupied as a dwelling.

of another – burning one's own dwelling does not constitute common law arson. However, for purposes of common law arson possession or occupancy rather than title determines whose dwelling the structure is.^[8] Thus a tenant who sets fire to his rented house would not be guilty of common law arson,^[8] while the landlord who set fire to a rented dwelling house would be guilty.

Furthermore, "[t]he 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."^[9]