Committee Comments

Sections 1401 and 1402 were adopted in 1979 and substantially modify the former sections 1401 and 1402, which were adopted in 1967. The 1967 statutes constituted a significant revision of prior law, so that case authority prior to 1967 is of limited interpretive value. The definitions and interpretations incorporated in these instructions are primarily based upon interpretation of the statutes as written.

In accordance with the language of sections 1401 through 1404, the first element lists the mens rea requirement for arson as "willful and malicious." This raises the question of whether two distinct mens rea elements must be proven to establish the crime, i.e., willfulness and maliciousness. If not, the Legislature may have simply used surplus words, so that only one mens rea element is required. The question then becomes: If only one element is required, is that element "willful" or "malicious"? It has been argued forcefully by Professor Perkins that statutes reading "willfully and maliciously" actually include only one mens rea element, that of maliciousness. R. Perkins, Criminal Law 216-20 (2d ed. 1969). Other authority is contrary. An Iowa statute using both words was interpreted to require proof of two elements. State v. Willing, 129 Iowa 72, 105 N.W. 355 (1905). In a California case involving a statute substantially similar to the Oklahoma statutes with respect to the mens rea requirement, the accused, the owner of the dwelling burned contended the statute was unconstitutional because it prohibited him from doing as he wished with his property. The court upheld the statute by construing it to prohibit "both a willful and a malicious act." The emphasis of the opinion, however, was on the mens rea element of maliciousness. People v. George, 42 Cal. App. 2d 568, 109 P.2d 404 (1941).

The basic arson statute in Oklahoma prior to 1967, 21 O.S. 1961, § 1381, used the words "willful and malicious." The Court of Criminal Appeals was never presented with the issue as to the interpretation to be given these words. However, in cases involving the issue of whether corroborating evidence of an alleged accomplice's testimony exists, the court has used the word "willful" several times to indicate that the act of burning must have been an intentional act. Allen v. State, 1977 OK CR 71, ¶ 14, 560 P.2d 1030, 1033; Rogers v. State, 57 Okl. Cr. 294, 48 P.2d 344 (1935); cf. Parrott v. State, 1974 OK CR 72, ¶ 9, 522 P.2d 635, 637 (term "willfully" simply implies purpose or willingness to commit an act or an omission). In contrast, the prior arson-in-the-first-degree statute, section 1390, used only the word "maliciously." A general impression gained from reading several arson cases under the old statutes is that the words "willful and malicious" were deemed to be words of art and expressed only one mens rea.

Furthermore, the present statutes make it a crime to burn certain property, whether it is "the property of himself or another." As defined by 21 O.S. 1991, § 92, "willfully" connotes simply a purposeful act, as opposed to an accidental or an unintended act.

However, it is the conclusion of the Commission that a person who burns his house solely because it is old and of very little value, and knows he is not endangering life or property, is not guilty of arson despite an intentional destruction by burning of his property. On the other hand, a person who burns his house and hopes to trap his family inside has, in the viewpoint of the Commission, committed arson, even though he is unaware that his family is absent. The latter hypothetical seems best described as a malicious burning in accordance with the definition of "maliciously" set forth at 21 O.S. 1991 § 95.

The combination of the argument by Professor Perkins, the general impression gleaned from the old statutes and cases, and the two hypotheticals in the preceding paragraph caused the Commission to conclude that the statutory language expresses only one mens rea element. The Commission further concluded that the mens rea element would be best described as "maliciousness." However, since the term "maliciously" also seems to incorporate the concept of "knowingly," the Commission has determined to avoid confusion by instructing in the terms of the statutory expression of the mens rea requirement.

The second element of the crime indicates the prohibited activity. The statutory terms "sets fire to" and "burns" appear somewhat synonymous. At common law, the crime of arson required some burning of the building itself. R. Perkins, Criminal Law 222-23 (2d ed. 1969). Nevertheless, although the conjunction of phrases in the instruction may be superfluous, the Commission has concluded that it is preferable to instruct in the language of the statute

Section 1401 criminalizes as arson the burning of "any building or structure or contents thereof," that is occupied or inhabited, a significant change from the former section 1401, which defined as arson the destruction of a dwelling house or adjoining structures, or the contents thereof.

The language "occupied or inhabited" is construed as encompassing two distinct situations: a building or structure actually contains persons at the time the crime is committed (occupied); or the building is ordinarily utilized as a lodging, although it might be unoccupied at the time the crime is perpetrated (inhabited). It should be noted that the former first-degree arson statute, 21 O.S. 1961, § 1390, repealed in 1967, criminalized as first-degree arson the burning of an "inhabited building in which there is at the same time some human being." An "inhabited building" was statutorily defined at 21 O.S. 1961, § 1383, repealed in 1967, as one "any part of which has usually been occupied by any person lodging therein at night." The addition of the phrase "occupied" and its disjunctive use in the current statute is indicative of a legislative intent to encompass more than structures that are ordinarily inhabited, and to include those that actually contain persons at the time the crime is committed. If this construction of the "occupied or inhabited" phrase is appropriate, interpretation of the parameters of the term "structure" will be important, since the dichotomy between arson in the first degree and arson in the second degree under the existing statutory law is between buildings and structures which are occupied and inhabited, and those which are unoccupied and uninhabited. Should it be determined, for example, that an occupied automobile or an inhabited boat is a "structure" for purposes of sections 1401 and 1402, the common law definition of arson would be greatly expanded.

Although at common law arson could be committed only against the habitation of another, the statute specifically indicates that the crime can be committed against "the property of himself or another." The Commission has interpreted this language to mean that the owner, occupier, or possessor can be convicted of arson even though the structure burned or destroyed is owned, occupied or possessed by the accused. Hence, "of another" is not an element. Clemens v. State, 17 Okl. Cr. 274, 187 P. 1100 (1920); People v. Miller, 41 Cal. App. 2d 252, 106 P.2d 239 (1940); State v. Ferguson, 233 Iowa 354, 6 N.W.2d 856 (1942).