sign in sign up
<<
Home , Arson

University of Baltimore Law Forum Volume 12 Article 3 Number 3 Spring 1982

1982 In Maryland A New Legal Approach Robert W. Glowinski

Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons

Recommended Citation Glowinski, Robert W. (1982) "Arson In Maryland A New Legal Approach," University of Baltimore Law Forum: Vol. 12: No. 3, Article 3. Available at: http://scholarworks.law.ubalt.edu/lf/vol12/iss3/3

This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. FORUM

Arson law, such as kitchens, shops, barns or In Maryland stables. While other jurisdictions have held a dwelling house to include jails A New Legal Approach State v. Whitmore, 147 Mo. 78, 47 S.W. by Robert W. Glowinski 1068 (1898) and schoolhouses, Wallace v. Young, 21 Ky. 155 (1827), the Courts in Maryland have not been called upon to make such distinctions. The provision in Maryland cover- In 1809, the State of Maryland State Arson Laws ing the illegal burning of buildings attempted to codify its criminal laws Codification of arson from the other than dwelling houses can be for the first time. (1809 Md. Laws ch. has not been uniformly found in the second arson statute, 138). Prior to this time were accomplished among the states. Most MD. ANN. CODE. art. 27, §7 (1982 dealt with under the common law. state arson statutes are derived from rep. vol.). Originally specifying spe- This act, however, concerned itself two existing model laws: the Model cific buildings, this statute primarily with providing punishments has evolved Arson Law developed by the National into a "catch-all" statute for certain crimes. covering all Protection Association (NFPA) buildings not specified in section In particular, the statute relating to 6. It and revised by the National Board of is not necessary arson referenced only the common that the building be Fire Underwriters (NBFU) based upon usable for some useful purpose law and provided for the pun- or common law or the Model Penal that it be intended ishment of hanging or alternatively 5 for use and occu- Code of the American Law Institute. pancy. Brown v. State, 39 Md. App. 497, to 20 years in the penitentiary. Other Arson statutes in Maryland are sim- 388 A.2d 130 (1978), rev'd punishments were delineated for the on other ilar in to the model law of grounds, 285 Md. 469, burning of specified and 403 A.2d 789 the NBFU and NFPA. The common (1979). certain sailing vessels. In 1904 the theme among these types of statutes Again, legislature changed the use of the like the model law on which is the codification of the common law it is based these two common law definition of arson slight- sections are fol- crime in the primary arson section ly by expanding the crime to include lowed by other "arson" offenses includ- which represented the most serious ing burning of one's own dwelling house if the intent not a building offense. The second section generally and attempted arson. in burning it was to injure or defraud. MD. ANN. CODE covers the crime of burning buildings art. 27, §§8-10 (1982 The legislature also included a res- rep. vol.). and other structures not used as tructuring of the penalties. dwellings. These provisions are fol- Corpus Delecti The first substantive at lowed by other offenses including the making arson a statutory crime in To prove the crime of arson it is burning of property not a building Maryland occurred in 1929. The sta- necessary to establish two elements: and attempted arson. tute in force today in the State remains that there was a burning and that the similar. Since that fire was of incendiary origin. The time the only sec- Maryland Arson Statutes tions that have been added to the sta- extent of the burning is not impor- tute were to address cross burnings, Like the model law upon which it is tant. The slightest burning satisfies burning of trash containers, the com- based, the Maryland Arson Law codi- the . In a particular example mission of arson while committing fies in the primary statute the com- where a molotov cocktail was thrown another crime and a changing of the mon law crime of arson, the malicious through the window of a high school, penalties. While retaining the com- burning of the dwelling of another. burning within the scope of the sta- mon law definition, what has in fact MD. ANN. CODE art. 27, §6 (1982 rep. tute was found only where paint on changed is the delineation of those vol.). Similar to its precursor, the sta- the window and a venetian blind cord items that if burned intentionally will tute does not include a requirement had been burned. Fulford v. State, 8 Md. constitute arson, and the expansion that the structure be occupied. How- App. 270, 259 A.2d 551 (1969). It is of of laws dealing with arson related ever, structures in this section need vital importance, however, that the crimes such as burning to defraud an not be "of another" and must be fire from the initial burning item insurer, setting a fire during commis- potentially occupiable. somehow be communicated to the sion of other crimes and attempted At common law a, "dwelling house" structure or property itself. Hines v. arson. was not only the mansion house but State, 34 Md. App. 612, 368 A.2d 509 "all outhouses which Taking a closer look at the arson were a parcel (1977). laws as they exist today in Maryland thereof." Smith v. State, 31 Md. App. The second element of the corpus we can compare their requirements 106, 355 A.2d 527 (1976). Maryland delecti of arson is the showing of an with other arson laws, especially the has specified in its arson statute a incendiary origin. By statute in Mary- model laws and evaluate their ade- number of buildings that are to be land, there is still a requirement for quacy in meeting their purpose. considered part of the dwelling by willful and malicious burning, as was XII/3

the case at common law. The effect of billion lost, through destruction of classified into aggravated arson, arson, this requirement is to render insuffi- buildings. Federal Emergency Man- reckless burning or exploding, and cient a showing of either carelessness agement Agency, U.S. Fire Adminis- failure to control or report a danger- or negligence on the part of the tration, "Arson - The Federal Role in ous fire. Attempted arson is placed in accused. The prosecution must show Arson Prevention and Control," report section 100.5. there was criminal intent or negli- to Congress, August, 1979, p. v-vii. gence constituting intent under the Add to this the tax revenues lost and Comparison With law. the dollar losses are multiplied many Maryland Statute times. The National Fire Protection Within the context of arson, the In Maryland, the most severe pen- courts of many jurisdictions have Association reported that the number alties are provided for arson to a dwell- defined willful and malicious as used of incendiary and suspicious in ing house, while arson of other build- at common law or in respective sta- the increased from 5,600 ings is a lesser . The MAPL, on tutes. Many states find implicit in 1951 to 177,000 in 1978. Carter, the other hand, removes the require- in all intentional burnings. Maryland "Arson and Arson Investigation in ment that the building be a dwelling rejected this concept when the Court the United States," 74 Fire J. 40 (July and substitutes the requirement for of Appeals, reversing the Court of 1980). These statistics are a clear indi- either occupancy or causing a death Special Appeals, held that willful and cation of the direction the problem is either directly or indirectly. malicious were independent of each taking both in Maryland and the U.S. The underlying premise of the Mary- other and that malice could not be The National Commission on Fire land statute is to protect property. inferred simply from the willfulness Prevention and Control charged that The Court of Appeals noted in Wimp- of one's actions. Brown v. State, 285 Md. the NBFU model law (like the Mary- ling v. State, 171 Md. 362, 189 A. 248, 469, 403 A.2d 789 (1979). The Court land statute) has not been changed to #253 (1937), that since the Maryland of Appeals stated that malice is defined meet the modern challenges of "urban arson statutes are directed against as "an or desire to harm violence." As a result, efforts at devel- the burning of buildings, regardless another," while willful was something oping new laws to address what is of occupancy, the offense is against done intentionally. Malice, which must perceived as a "modern arson prob- property. MAPL, however, shifts the be present for an arson conviction, is lem" have been undertaken. emphasis of the law to the protection the intent to bring harm to another of human life. The purposes of the person and cannot be inferred simply Model Arson Penal Law two laws differ. The question, then, is from the intent to burn. However, A new "model" law has been pro- one of priority. Do we wish to deter this has now been further narrowed posed by the insurance industry to be the intentional burning of buildings, to permit malice to be inferred from referred to as the Model Arson Penal or diminish the threat which arson the setting of a fire with reckless and Law (MAPL). Included in this new imposes upon human life? The ideal wanton disregard of the consequences, law are provisions for criminal mis- goal is to achieve both while distin- even if the intent or desire to hurt chief, possession of , at- guishing the more severe act, whether another is absent. Debettencourt v. State, tempted arson and others. The first intended or not, of taking a human 48 Md. App. 522,428 A.2d 479 (1981). section (100.1) of MAPL is for Arson life in the commission of arson. Sec- and Related Offenses. Within this tion 100.1 (1)(a) of MAPL would find Arson Problem in Maryland section are substantive subsections Since fires are not reported to the State with any regularity, arson in Maryland is difficult to quan- tify. It is estimated that between 3,500 and 4,000 arson fires occur annually in the State. Dollar losses total $30 million a year. On the aver- age, 15 people die with uncountable indirect losses to jobs and families. The Governor of Maryland recently appointed an Anti-Arson Advisory Council to determine strategy for statewide prevention, detection and control of arson in Maryland. (9:5 Md. R. 441-442 (March 5, 1982). On a national scale the problem is even more epidemic, with over 700 people killed in arson fires and $1.3 FORUM

a person guilty of Aggravated Arson troying valued property; or (c) placing value of $25 or more, in for starting a fire with the purpose of any person in danger of . danger of damage and de- destroying or damaging any inhabited struction, shall be guilty building or structure of another. Sec- Proposal of Reckless Burning. tion 100.1 (i)(b) includes as Aggra- In its review of barriers to revising Sec. 4- Failure to Report a Fire - vated Arson any fire started for the state arson laws, the U.S. Depart- Any person who knows that a purpose of causing either death or ment of Commerce criticized MAPL fire is endangering life or prop- bodily injury to any other person, for being incompatible with the laws erty of another and fails to either directly or indirectly. It appears of those states not using the Model give a prompt fire alarm, shall that this second subsection has been Penal Code. In response to this criti- be guilty of Failing to Report a included to protect others, possibly cism and other faults of MAPL, a new Fire. It is an affirmative not in buildings, who should happen model is suggested as an appropriate that: to be killed or injured as a result of the law for adoption by those states such (A) The defendant reasonably act. as Maryland not presently using the believed that the giving of Arson within MAPL includes the Model Penal Code. This proposal a prompt fire alarm was intentional burning of unoccupied struc- draws from the present Maryland impossible, futile, or in- tures of another or destroying one's arson laws, the MAPL and the Pro- volved a substantial risk own property to collect insurance. posed Criminal Code of the Maryland of injury; or Maryland, through legislation, has Commission on (sec- (B) The defendant reasonably removed the ownership requirement tion 150.10, 1972). believed that a fire alarm from its law. It is thus the same felony Sec. 1- First Degree Arson - Any had already been given or in Maryland to set your own building person who willfully and mali- was being promptly given on fire as it is to set another's. MAPL ciously sets fire to or causes, by another person; or equates the burning of an unoccupied aids, counsels or procures the (C) Failure to give the alarm structure of another with the burn- burning of any occupied build- was due to the defendant ing of one's own property when the ing, shall be guilty of First being engaged in reason- intent is to defraud an insurer. Degree Arson. able measures to suppress The MAPL also includes a section Sec. 2- Second Degree Arson - (A) or control the fire, or res- on reckless burning. This section would Any person who willfully and cue persons endangered include any fire intentionally started maliciously sets fire to or causes, by the fire. No person that places another person in danger aids, counsels or procures the shall be tried and convicted or places the building of another in burning of any unoccupied of this offense and any danger of damage or destruction. Re- building of another, or (B) arson offense resulting cent Maryland court interpretation Any person who willfully sets from the same fire. would allow a conviction for reckless fire to or causes, aids, coun- Sec. 5- Attempted Arson - Any per- burning under the arson statutes. sels, or procures the burning son who willfully and mali- However, the term reckless appeared of any real or personal prop- ciously to set fire to, to connote a much more negligent erty to collect insurance, shall or attempts to burn or to aid, action than is required under MAPL. be guilty of Second Degree counsel or procure the burn- Another section of the MAPL, not Arson. ing of: present in Maryland law, covers fail- Sec. 3- Reckless Burning - Any per- (A) Any structure or building ure to control or report a dangerous son who purposely causes an mentioned in section I of fire. This section makes it a misde- explosion or fire, or if he aids, this law, or commits any meanor to fail to combat or control a counsels or procures a fire or act preliminary thereto, fire if under a duty and if it can be explosion, whether on his own or in furtherance thereof, done without substantial risk to one's property or that of another is guilty of Attempted self, or alternatively for failing to give and thereby recklessly: Arson in the First Degree. a prompt alarm. (A) Places another person in (B) Any structure or building A last section, apart from the main danger of death or bodily mentioned in section 2 of arson provisions of §100.1, covers injury; or this law, or commits any attempted arson. Section 100.5 covers (B) Places a building or struc- act preliminary thereto, placement of any material or device ture of another in danger or in furtherance thereof, with the intent to eventually start a of damage or destruction, is guilty of Attempted fire or explosion, with the purpose of whether or not occupied; Arson in the Second De- willfully and maliciously (a) destroy- or gree. ing a structure of another; or (b) des- (C) Places any personal prop- Proposed Penalties erty of another, having a First Degree Arson - Not more than 30 years XII/3

Second Degree Arson - Not more 139A (1982 rep. vol.) on malicious duty to report a fire to do so, although than 20 years destruction of property and posses- excuses for failure to do so may be Reckless Burning - Not more than sion and use of molotov cocktails and affirmative defenses. The duty may I year and/or $1,000 fine other devices. arise officially, contractually or as a Failure to Report - Not more than Second Degree Arson - Again, no result of negligence or in I year and/or $500 fine purpose is required for the burning to causing the fire. One of the criticisms Attempted Arson (first degree) - be included in this section. As the of the parallel section in MAPL was Not more than 10 years State of Maryland Commission on that the section, as proposed, would Attempted Arson (second degree) Criminal Law found, it should be an possibly penalize for first attempting - Not more than 2 years and/or under this sec- to control the fire and then calling the $1,000 fine tion that: (a) no other person had a fire department when the fire got out possessory or proprietary interest in of control. Here, the section would Comment the building, or that such person con- not require control of the fire, but First Degree Arson - Applies to sented to the act; and (b) the sole only to take measures to report the occupancy of the building, whether intent was to destroy the building for fire when there is knowledge of the or not known, when the fire endangers a lawful purpose with no intent to fire and the ensuing danger. any person other than the person collect the insurance; and (c) there was Attempted Arson - This section being charged. This section represents no reasonable ground to believe that adopts the format and theory of the a departure from MAPL. First, it does damage to another structure may present Maryland statute on attemp- not require the purpose of the fire to occur or that danger to another per- ted arson. This allows the punish- be to destroy or damage the building. son may be created. This section also ment to be linked to the severity of This requirement of purpose would includes fires begun outside the un- the offense had it been completed, necessitate a specific intent not neces- occupied structure where it is intended which is not present in MAPL. Chang- sarily present when a fire is set. that the fire spread to the unoccupied ing the wording is necessary for com- Second, MAPL alternatively requires structure. Intentional destruction of patability with other sections of the a purpose of causing death or injury wholly personal property is covered proposal. A section on attempted arson to another person. But what if death in MD. ANN. CODE art. 27, §I 11 (1982 is very necessary to give force to the results to a fireman responding to the rep. vol.). other arson sections. If the risk of fire? Could the intent to harm a fire- The most significant inclusion under punishment did not apply to those man be inferred from the setting of Second Degree Arson is arson-for- who attempt arson, it would create a the fire? The Maryland Court of profit: that is an intent to defraud an confidence that the only risk taken Appeals has stated that fighting fires, insurer. A substantial percentage of would be where the crime has been however caused, is a fireman's occu- all arson fires occur because of eco- successful. When attempted, a crime pation. Apart from intentionally caus- nomic factors, such as intentional should be considered to have been ing injury, failing to warn of hidden overinsurance, need to reduce inven- committed. Failure as well must be dangers, and statutory violations, tories double insurance. Present Mary- punished. there is no liability to firemen. Brown, land law penalizes arson-for-profit 403 A.2d at 792; 285 Md at 476. Ara- with only a 5 year jail sentence, and vanis v. Eisenberg, 237 Md. 242, 206 further provides punishment only for Quickee Offset A.2d 148 (1965). arson-for-profit of personal property. inc. Since it is foreseeable that injury to Reckless Burning - This section a fireman may result anytime the fire adopts the proposal in MAPL. It in- department is called, it should not be cludes the reckless use of explosives determinative of the crime charged. not contemplated under MD. ANN. However, where an affirmative act is CODE art. 27, §§111 and 139A (1982 Since 1956 made that may directly result in death rep. vol.). It is an attempt to codify the " Specializing in Xerox Copies nRegu.l Xero-g or injury to fireman, appropriate decision of the Maryland Court of Fab.usF Xer, 9400 0.uphCari counts should also be brought charg- Special Appeals in Debettencourt v. State, TTsNEW X.- COLOR Copce * Organization Newsletters, ing , or . Fires 48 Md. App. 522,428 A.2d 479 (1981), Rule Books, Programs and begun other than inside the occupied where the Maryland Court of Appeals Tickets building would result in First Degree held that the intentional setting of a " Wedding Invitations Arson as well, and Announcements when it can be shown fire in wanton and reckless disregard * Fast Photo Offset, Photo- that the intent was to have the fire of the consequences to the safety of typesetting, Ouplicating, spread to the occupied structure. others is a sufficient element and con- Printing & Bindery Services Causing explosions is covered in stitutes malice. 2310 N. Charles St. MAPL and is adequately addressed ICustomer Parking] in Failure to Report a Fire - This Baltimore, Mo. 2121B MD. ANN.CODE art. 27, §§111 and section would require those under a 467-5800 FORUM

The wording of the statute, how- Proposal - Conviction under §5 none of the three laws addresses spe- ever, does not specify at what point (A,B). cifically, the general intent behind an act comes near enough to the Comment - MAPL does not dis- each of the three statutes is evident to accomplishment of arson to be punish- tinguish between attempted arson of the Courts that would have to inter- able as an attempt. If the preparation an occupied dwelling house or an pret them. comes very near to the accomplish- unoccupied barn. Linking the pun- ment of the act, the intent to com- ishment to the offense would provide Conclusion plete it renders the crime so probable greater equity. Arson laws are criticized in this that the act will be a crime. It is all a Example 3 - Burning of .own, country as lacking uniformity, appro- question of degree which will vary occupied dwelling house which is be- priate penalties, and specific delinea- with the circumstances. Every act lieved to be unoccupied. No insurance tion of responsibilities. The Arson short of actual commission need not claims are filed, however, all occu- Resource Exchange Bulletin, a publi- be accomplished to convict of attemp- pants were killed. cation of the U.S. Fire Administra- ted arson. The only requirement for Maryland - Conviction under tion, reported that conviction is an act "tending to effect Art. 27, sec. 6. Arson is no longer a crime against the commission of a crime." Cody v. MAPL - At best a conviction for property but a crime against each State, 605 S.W.2d 271 (Tex. Cr. App. Reckless Burning. and every citizen, and a brazen 1980). Proposal - Conviction for First attack on the entire economy of Degree Arson. our country .... Many lawmakers Adequacy of the Various Laws Comment - Under MAPL to be do not agree with the far-reaching To evaluate the adequacy of the either Aggravated Arson or Arson potential of this crime, because they various laws discussed here a number would require that either the struc- are still hung up on it being a vic- of hypothetical situations are exam- ture be owned by another, or that timless crime - a crime against ined in terms of the expected out- death or bodily injury be intended or property. come under the particular law, within the intent of the fire be to collect There has been an attempt to ana- the bounds of the facts given. insurance. Starting a fire in an occu- lyze the Maryland arson laws to deter- Example 1 - Recklessly burning pied dwelling is a serious offense mine their impact on the crime within one's own unoccupied dwelling house. whether or not it is owned by the the state. State laws in general have No insurance claims filed. firesetter. It should not be dependent been specifically cited as suffering Maryland - Probable conviction upon an intent to injure for a penalty from verbose and vague language, under art. 27, §6. to ensue. poor treatment of related offenses, MAPL - Possible conviction for Example 4 - Burning of un- and lack of proper punishments to fit reckless burning. occupied, empty warehouse to defraud the offense. In response, a Model Proposal - Possible conviction the insurer. Arson Penal Law (MAPL) was devel- for reckless burning. Maryland - Implicitly covered oped in an attempt to overcome these Comment - Similar to Debetten- under §7; probably no conviction under deficiencies, common to many states. court, present Maryland law places arson to defraud, §9; possible convic- However, in analyzing that proposed emphasis on property burned. While tion under the gradu statutes: Art. 48 law a few shortcomings were recog- it is necessary to deter arson because A §233. nized as well. As a result, a new pro- of the damage it causes, proper em- MAPL - Conviction under§100.1 posal is made, that could be adopted phasis is better placed on the danger it (2)(b), for arson to defraud an insurer. by many states including Maryland, causes. Although lacking specific mali- Proposal - Conviction under §2 that attempts to shift the emphasis cious intent, if the fire recklessly for arson to defraud an insurer. on arson from being a crime solely endangers other people or property it Comment - Present Maryland law against property, to a crime against becomes an act that society ought to expressly relating to arson ap- people as well. punish. However, punishment should plies only to personal property. While This proposal is intended only as a fit the seriousness of the crime com- arson fraud of real property is implic- starting point, something legislators mitted. Present Maryland arson law itly covered under §§6 and 7, the mal- can build on and improve. The suc- equates this fact situation with one ice element of these sections, as dis- cess of such a law, a departure from where a fire is set to kill an entire cussed in Brown, presents a more common law arson, will depend upon family. difficult burden than an intent to its ability to incorporate the tradi- Example 2 - Attempted Arson of a defraud element. tional elements of the common law structure These examples point out just a with a statutory formulation that Maryland - Conviction under few of the differences in these three attempts to address a growing, mod- art. 27, §10 (a,b). arson laws. While there will always be ern problem not contemplated by the MAPL - Conviction under § 100.5. a certain set of circumstances that original legislative authors.