First Degree Arson

Second Degree Arson


Reporter’s Notes

The act of arson is described under the statute in various ways, applying, for example, to someone who “burns” or “sets fire to” or “causes [a structure] to be burned.”  The terms “burn” and “set fire to” are essentially synonymous.  State v. Babcock, 51Vt. 570, 576-77 (1879).

An actual burning need not occur for the crime of attempted arson.  See 13 V.S.A. § 509 (attempts); State v. Dennin, 32 Vt. 158 (1859).  In one case where the defendant was found kneeling in the middle of the floor, matches in hand, together with a cone-shaped roll of newspaper, with a jar of paint thinner beside him and in the presence of a strong odor of gasoline, while the apartment was dark, and the striking of a match would have consummated the crime, this evidence supported a conviction for attempted arson.  State v. Woodmansee, 124 Vt. 387, 391 (1964).  In another case, where the defendant had supplied flammable material, and disabled a sprinkler system which would have stopped the fire, the evidence sufficed to prove that he had participated in the planning of the illegal act, and had furthered the act.  State v. Polidor, 130 Vt. 34, 36 (1971).  It is a crime to procure an attempted burning as well as an actual burning.  State v. Ciocca, 125Vt. 64 (1965).

The definition of “structure” derives from the statutes on municipal and regional planning and development, 24 V.S.A. § 4303(11).

The word “wilfully,” as used in the statute, means intentionally and by design.  The word “maliciously” has a darker meaning, and requires in addition a deliberate and evil intention to destroy the property.  State v. Sylvester, 112Vt. 202, 206 (1941).

After discussion, the committee has included the instruction on a presumption that a fire was the result of an accident or some natural cause, as long as it is balanced by the instruction that an intentional burning may be proven by circumstantial evidence.  These two concepts are discussed together in State v. Bessette, 129Vt. 87, 89-90 (1970).

“[I]n order to prove the corpus delicti of arson it is not sufficient to show a burning, which may have been the result of an accident.  It must be proved beyond a reasonable doubt that the burning was not accidental, but was wilfully and maliciously caused by some person who was morally responsible for his [or her] actions.”  State v. Teitle, 117 Vt. 190, 205 (1952).