University of Baltimore Law Forum Volume 12 Article 3 Number 3 Spring 1982 1982 Arson 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. common law has not been uniformly found in the second arson statute, 138). Prior to this time crimes 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 Fire 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 crime 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 principal to the model law of grounds, 285 Md. 469, burning of specified properties 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 property 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 attempt 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 element. 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 fires in ing house, while arson of other build- at common law or in respective sta- the United States increased from 5,600 ings is a lesser felony. The MAPL, on tutes. Many states find malice 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 intention 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).