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 “willfully,” as used in the statute, means intentionally and by design.  While the Vermont Supreme Court has not explicitly defined “maliciously” in the arson context, most courts recognize that to act “maliciously” for purposes of committing arson means to act intentionally and without legal justification, and does not necessarily require personal hate or ill will. See 3 C. Torcia, Wharton’s Criminal Law § 33:4 & n.6 (16th ed. Sept. 2022 update) (“The burning must be ‘malicious.’ But, again, as a result of case-law development over the years, malice in a literal sense is not required; a defendant may act maliciously even though the defendant harbors no ‘malevolence or ill-will’ toward the owner or occupant.”); 3 W. LaFave, Substantive Criminal Law § 21.3(e) (3d ed. Oct. 2022 update) (For common law arson, “[t]here was not . . . any need to show ‘malevolence or ill will’”); 5 Am. Jur. 2d Arson and Related Offenses § 7 (2d ed. Feb. 2023 update) (With arson, “malice is inferred from willfulness. . . . ‘Malicious,’ as in the requirement of a malicious burning as used in defining arson, is quite different from its literal meaning. It need not take the form of revenge or ill will.”). Note, however, that in other contexts, the word “maliciously” ordinarily has a darker meaning, and requires in addition a deliberate and evil intention.  See State v. Sylvester, 112 Vt. 202, 206 (1941); State v. Muzzy, 87 Vt. 267, 268–69 (1913); see also, e.g., CR28-171, -173, -175 (aggravated animal cruelty instructions). For an exhaustive analysis of how the statutory law of arson has developed in the United States, see J. Poulos, The Metamorphosis of the Law of Arson, 51 Mo. L. Rev. 295, 405 (1986) (observing that, for the states with arson statutes similar to Vermont’s, “the cases do hold, without exception, that an intentional burning of the property of another without justification or excuse is a malicious burning under these statutes. . . . [T]he statutory phrase ‘willfully and maliciously’ should be interpreted in accordance with the common law.”) (emphasis in original).

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).