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Arson is the malicious burning of the dwelling of another.  Seem’s simple enough; but there is so much more.  Arson is a general intent crime and has small nuances to it so it has become an essay favorite.  In order to get the most points out of your arson analysis you really have to get into it.

Burning the Structure

To have an arson crime you must have a burning or charring of the structure.  This does not mean that the entire house has to burn down, that a section of the house has to burn down, or that really any significant part of the home must burn down, just that there is a burning or charring.

The 1980’s MCQ has a very good MCQ on arson:

Is Tom guilty of arson of Vic’s house?

(A) Yes, because there was smoke damage to the walls.

(B) Yes, because a burning occurred in the commission of an inherently dangerous felony.

(C) No, because arson is a specific intent crime.

(D) No, because there was no burning of any part of the house.

Remember, there must be a burning or charring of the structure.  In our fact pattern we are told the only damage was smoke discoloration to the walls and next to the bed; therefore there was no burning or charring to the structure.  MCQ’s are often more straight forward with the burning or charring aspect.

Here is part of the fact pattern from one of the 2017 Criminal Law essay questions:

“Tom then lit several firecrackers in his yard, and threw them at Heather’s house. He wanted to wake her up to discuss what he had seen. Two of the firecrackers landed in the tool shed, setting it afire. The sound of the firecrackers awakened Heather and, upon seeing flames, she grabbed a can of lighter fluid, opened some windows on the side of the house near the shed, and squirted the flammable fluid on the windowsills. Heather had been having a hard time selling her house and thought that, as long as the shed was going to burn down, the house could just as well burn with it since her insurance would cover the loss.”

Based on the fact pattern do you see arson?  Of course you do but do you see a clear burning or charring?  Of course you don’t; they would never make it that easy.  They want you to argue it.  They want you to argue that the tool shed was burned, they want you to argue that the home was burned.

Do something that pushes your boundaries, something that you wouldn’t ordinarily do. Take a calculated risk and allow yourself to crumble a little.

Dwelling House

The element of dwelling house is a common law element.  The requirement the structure be the dwelling of another has been changed to encompass virtually any protected structure.  Modernly, the of another element, has too been changed so that it is possible to commit arson on ones own home.  Having a variation between common law and modern majority give you, the essay writer, an opportunity to make extra points here.

WRITING TIP  If you identify a fact pattern in which you can discuss both common law arson and modern majority do so.  Create two separate headings, one for common law and one for modern majority.  Then under each heading discuss the specifics i.e. Common Law Dwelling, Under the Common Law the structure must be a dwelling house.  Here, Tom lived and slept in the home because this is where he lived, therefore under Common Law it would be the dwelling house.  Modern Majority Dwelling, Under the majority of jurisdictions the element of dwelling house has been changed to any protected structure.  Here, …..


When we say you must have malice to show arson we are not talking the same type of malice needed for a homicide we are talking about the specific intent to burn or extreme wanton recklessness.

With this in your mind take another look at the fact pattern above from the 2017 FYLSE.  Tom lit several firecrackers and threw them into the yard.  We are not told that Tom had a specific intent to burn the home but we can argue that the lighting and throwing of several fire crackers into the yard may have constituted extreme wanton recklessness.

WRITING TIP  In your analysis, just because you don’t see intent to burn does not mean you shouldn’t mention it.  Mention that malice can be shown through intent to burn or extreme wanton recklessness.  State: Here, the fact pattern tells us that Tom threw the fire crackers because he wanted to get the girls attention therefore there is no specific intent to burn.  Since malice can be satisfied by intent to burn or extreme wanton recklessness; Tom’s act of throwing the fire crackers could be shown to be extreme wanton recklessness.  The throwing of fire crackers always poses a risk of fire danger because fire crackers are on fire, they are even mandated to have warnings and some cities don’t even let you use them in the city limits, therefore Tom’s act of throwing the lit fire crackers would be found extreme wanton recklessness.

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