Other crimes - Arson

Learning Outcomes

This article explains arson as an “other crime” on the MBE, including:

• understanding and applying the common law definition (malicious burning of the dwelling of another) and each element in isolation and combination;
• distinguishing common law arson from typical modern statutory formulations that expand protected property, methods of damage, and ownership requirements;
• analyzing the malice requirement, including intent, knowledge, and recklessness, and contrasting these with mere negligence or accident;
• determining whether a fact pattern shows a legally sufficient “burning,” with attention to charring versus smoke damage, structural damage versus damage only to contents, and fire versus pure explosion;
• evaluating whether a structure qualifies as a “dwelling of another” based on habitation and occupancy rather than title, and resolving landlord–tenant and abandonment scenarios;
• recognizing how arson interacts with related offenses such as houseburning, arson to defraud an insurer, reckless burning, and attempt, and how voluntary intoxication operates differently for completed arson and attempted arson;
• using arson accurately as a predicate felony for felony murder and accomplice liability, including transferred malice and foreseeability of spread to additional structures or victims;
• spotting and avoiding classic MBE traps involving modern statutory language, insufficient burning, incorrect focus on ownership, and blurred lines between recklessness and negligence.

MBE Syllabus

For the MBE, you are required to understand arson as a property crime, with a focus on the following syllabus points:

• Elements of arson at common law (malicious burning of the dwelling of another).
• Modern statutory expansions: structures and property beyond dwellings, and burning one’s own property.
• The malice mental state: intent, knowledge, and reckless disregard of a substantial fire risk.
• What constitutes a “burning,” including charring versus mere smoke or scorching.
• The role of “dwelling” and “of another” (occupancy rather than ownership).
• Related offenses: houseburning, arson to defraud an insurer, and lesser reckless-burning offenses.
• Defenses and limitations: accident, lack of malice, insufficient damage, and exam-trap distinctions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. At common law, which of the following is required for arson?
   1. Burning of any property
   2. Malicious burning of the dwelling of another
   3. Burning by negligence
   4. Burning of your own property
2. Which mental state is required for arson?
   1. Strict liability
   2. Negligence
   3. Malice
   4. Purpose
3. Under modern statutes, which of the following is NOT typically required for arson?
   1. Use of fire or an explosion that causes burning
   2. Damage to a dwelling
   3. Malicious intent
   4. Burning of property other than a dwelling
4. Which of the following is true regarding "burning" for arson at common law?
   1. Any blackening is sufficient
   2. Only charring of the structure is required
   3. Only destruction of contents is required
   4. Smoke damage alone is sufficient
5. For purposes of common law arson, “of another” most nearly refers to:
   1. Legal ownership of the building
   2. Legal title and mortgage status
   3. Occupancy and use of the building as a dwelling by someone other than the defendant
   4. Whether the building is insured in someone else’s name

Introduction

Arson is a classic property crime tested on the MBE. It involves the malicious burning of property, traditionally a dwelling, but modern statutes have expanded its scope to include many types of structures and even personal property. Because arson is also one of the BARRK felonies that can support felony murder, the exam expects precise understanding of its elements and mental state.

Key Term: Arson (Common Law)
The malicious burning of the dwelling of another.

The analysis on the MBE almost always turns on a small detail: Was there true “burning,” did the defendant act with malice rather than mere negligence, was the structure a dwelling, and was it “of another” given who actually lived there? Getting these details right is critical, both in standalone arson questions and in homicide questions that use arson as the predicate felony.

The MBE will often either:

• Assume a modern statute applies (stating that arson includes burning any building or even personal property), or
• Remain silent on statutes and implicitly test pure common law rules.

Your job is to spot which regime the question is using and then carefully check each element.

Elements of Arson at Common Law

At common law, arson required:

• The malicious
• Burning
• Of the dwelling
• Of another

Each element must be satisfied for a conviction. If any one is missing, the defendant is not guilty of common law arson (though a modern statute or related offense may still apply).

Breaking this down:

• Malicious: The required mental state is malice, not specific intent.
• Burning: There must be damage by fire to the structure itself.
• Dwelling: The building must be used regularly for sleeping.
• Of another: The dwelling must be someone else’s habitation, focusing on occupancy, not ownership.

The following subsections expand each element, with exam-focused detail and examples.

Malice Requirement

Arson is a malice crime. The defendant must act with intent or reckless disregard that creates a substantial risk of burning. This does not require ill will or a desire to harm the owner; burning someone else’s house as a “prank” still counts.

Key Term: Malice (Arson)
Acting with intent, knowledge, or reckless disregard of an obvious and substantial risk that a structure will burn.

Key points on malice for the exam:

• Sufficient mental states:

  • Purposefully setting a fire (e.g., striking a match and lighting curtains).
  • Knowing the fire is almost certain to occur (e.g., placing lit candles on gasoline-soaked rags).
  • Recklessly ignoring a clear and substantial risk of fire (e.g., lighting matches in a room known to contain flammable vapors).

• Insufficient mental states:

  • Mere negligence (failing to recognize a risk that a reasonable person would have noticed).
  • Purely accidental fires where the defendant did not act with any awareness or conscious disregard of a risk.

• No motive requirement:

  • Malice does not require spite, hatred, or profit motive. The law cares about the risk the defendant created, not why he did so.

Because arson is a malice crime, voluntary intoxication is not a defense on the MBE. Even if the defendant was drunk when he set the fire, he cannot use that as a defense to negate malice.

Recklessness versus Negligence

This distinction is heavily tested:

• Recklessness: Defendant is actually aware of a substantial and unjustifiable fire risk and consciously disregards it.
• Negligence: Defendant fails to perceive the risk, even though a reasonable person would have.

Only the first qualifies as malice for arson. If the facts expressly say the defendant was unaware of any fire risk, you should think “negligence,” not “malice,” unless other facts suggest otherwise.

Transferred Malice and Arson

If a defendant maliciously sets fire to one building but the fire spreads to another, malice “transfers” to the additional building.

Example:

• D intends to burn an abandoned storage shed, knowing it presents a serious fire risk to nearby homes but hoping they will not burn. The fire spreads and burns a neighbor’s dwelling. D has the malice required for arson of the neighbor’s dwelling because he consciously took a substantial fire risk.

The exam may test this by asking whether D is guilty of arson of a building he did not specifically intend to burn. Focus on whether his conduct created a substantial known risk that the other building would burn.

Malice and Failure to Act

Malice can also be inferred from a deliberate failure to act when the defendant knew a fire had started and had the ability to extinguish it safely:

• If D accidentally starts a small fire but then intentionally allows it to spread because he wants the building to burn, the later malicious inaction can satisfy the malice requirement.

The "Burning" Requirement

Not every fire or damage qualifies. At common law, "burning" required some charring of the structure itself, not just blackening or damage to contents. Scorching or smoke damage alone is insufficient.

Key Term: Burning (Arson)
Damage by fire to the structure itself, requiring at least charring of the structural material, not just blackening of the surface or damage only to contents.

Important distinctions:

• Scorching vs. charring:

  • Scorching or surface blackening from smoke or heat is not enough.
  • Charring—some damage to the fibers of the wood or structural material—is sufficient, even if minor. The building need not be destroyed.

• Structure vs. contents:

  • Burning only the contents inside (e.g., furniture, curtains, clothing) without damage to the structure was not arson at common law.
  • The wall, floor, ceiling, or another structural component must be burned.

• Cause of burning (common law):

  • Common law required the damage to be caused by fire, not merely by heat or an explosion.
  • Damage solely from an explosion without resulting burning (e.g., a blast that shatters windows but no fire ignites) did not qualify as arson at common law.

On the MBE, the fact pattern often turns on whether the fire actually charred part of the building. If the question emphasizes “only smoke damage” or “paint darkened but wood was intact,” you should analyze whether burning is satisfied under common law or only under a modern statute.

Extent of Damage

The amount of structural damage required is minimal:

• A small charred area on a wooden window frame or door can be enough.
• The prosecution does not have to show substantial destruction or expensive repairs.
• Conversely, if the structural material is merely discolored but the fibers are not burned, the burning element fails at common law.

This is a common exam trap: students often assume that any visible damage is sufficient. The correct rule is more demanding.

Burning by Explosion Under Modern Law

Most states have modified the common law to include damage by explosion within arson, especially when a fire results or the statute explicitly refers to damage “by fire or explosion.”

Under such statutes:

• An explosion that chars or seriously damages a structure can constitute arson even if the fire is brief or secondary.
• Some statutes go further and treat certain explosive damage as arson even when there is no traditional “fire,” as long as the statute is worded that broadly.

The MBE will usually let you know when a modern statute applies by quoting it or referring to damage “by fire or explosion.”

Dwelling of Another

At common law, only dwellings (places regularly used for sleeping) were protected. Burning your own dwelling was not arson. Temporary absence of the occupant did not change the dwelling’s status.

Key Term: Dwelling (Arson)
A structure regularly used for sleeping by someone (other than the defendant) and serving as a habitation, even if also used for other purposes.

Clarifications for exam purposes:

• What counts as a dwelling?

  • A house, apartment, mobile home, or other structure regularly used for sleeping.
  • A mixed-use structure (e.g., store on ground floor, apartment above) is still a dwelling if any part is used for sleeping.
  • Temporary absence (holiday, weekend away, vacation) does not deprive the building of its character as a dwelling.

• What is not a dwelling?

  • A newly built house where no one has moved in yet.
  • A building permanently abandoned as a residence.
  • Purely commercial structures (e.g., a warehouse) at common law.

Because the definition of dwelling for arson is the same as for burglary, many bar examers reuse burglary fact patterns and simply substitute “fire” for “breaking and entering.”

“Of Another” — Occupancy, Not Ownership

Key Term: Dwelling of Another (Arson)
A dwelling that is used as a residence by someone other than the defendant; occupancy as a home, rather than legal title, determines “of another.”

Arson is a crime against habitation, not ownership.

Key points:

• A building is “of another” if someone other than the defendant uses it as a dwelling, even if the defendant owns the building.

• The landlord–tenant scenario is the classic example:

  • A landlord burns a tenant’s apartment: this is burning the dwelling of another, because the tenant occupies it as her home.
  • The landlord’s legal title is irrelevant.

• Conversely, burning a house that the defendant occupies as a dwelling, even if someone else holds title, was not common law arson because it was not the dwelling “of another” with respect to the defendant.

This occupancy-based approach is a favorite MBE trap. If a landlord burns a tenant’s apartment, that is arson “of another,” even though the landlord is the legal owner. If the occupant has permanently moved out and does not intend to return, the building is no longer a dwelling, and common law arson may not apply.

Shared Occupancy

The MBE rarely presses this, but for completeness:

• If D lives in the dwelling himself (e.g., with a spouse or roommate), at strict common law he could not be guilty of arson for burning that house, because it is his dwelling as well.
• The focus remains protection of other people’s habitations; burning your own was addressed by the separate offense of houseburning (discussed below) when it endangered other homes.

When a question highlights that D “lives alone in the house he burned,” that is usually a signal that common law arson may fail on the “of another” element unless a modern statute applies.

Modern Statutory Changes

Most states have expanded arson beyond the narrow common law definition. On the MBE, unless the fact pattern clearly invokes strict common law, assume that a reasonably broad modern statute governs if the question explicitly describes one.

Key Term: Arson (Modern Statute)
The malicious burning or damaging by fire or explosion of any building, structure, or property, often regardless of ownership, as defined by statute.

Common modern changes include:

• Broader protected property:

  • Arson typically includes burning any building or structure, not just dwellings.
  • Many statutes also include motor vehicles, boats, aircraft, and even personal property (e.g., someone’s car or inventory).

• Ownership no longer limited to “of another”:

  • Burning your own property is often arson, particularly if:
    • The burning creates a danger to others or their property, or
    • It is done with intent to defraud an insurer.

• Expanded methods of causing damage:

  • Damage caused by explosions is typically included.
  • Some statutes count arson even where the structural components are not charred, as long as there is sufficient fire, heat, or explosion damage.

• Degrees of arson:

  • Many jurisdictions classify arson into degrees, often based on:
    • Whether the building is a dwelling.
    • Whether it is occupied at the time.
    • Whether anyone is injured or killed.
    • The type or value of property burned.
  • Higher degrees apply to:
    • Burning occupied dwellings.
    • Fires that cause serious bodily injury.
  • Lower degrees apply to:
    • Burning unoccupied buildings.
    • Burning personal property with lower value.

On the MBE, the question will often signal a modern statute by:

• Referencing any building or structure, rather than a dwelling.
• Including damage by explosion.
• Explicitly allowing burning of one’s own property.
• Providing a quoted statutory section.

The call of the question may also say, “Under a modern statute defining arson as…” which you should apply directly. If the statute is given, follow it even if it deviates from the traditional rules.

Related Offenses

Arson interacts with several related offenses, both at common law and under modern statutes.

Houseburning

At common law, burning your own dwelling was not arson. Instead, a separate misdemeanor called houseburning applied.

Key Term: Houseburning
The malicious burning of one’s own dwelling when it is in a city or town or situated so near other houses that they are placed in danger.

Houseburning elements:

• Malicious burning.
• Of one’s own dwelling.
• Located in a city or town, or so near other dwellings as to endanger them.

This reflects the focus on protecting neighboring habitations. Modern statutes typically incorporate this idea into arson by making it a crime to burn your own building when doing so endangers others or is done for fraudulent or dangerous purposes.

Many bar questions effectively test houseburning concepts by describing:

• An owner who burns his own residence in an urban area.
• A fire that spreads to or threatens neighboring dwellings.

In such scenarios, under strict common law the owner is not guilty of arson but is guilty of the separate misdemeanor of houseburning. Under modern statutes, however, he is usually guilty of arson.

Arson for Insurance Fraud

Many modern statutes create a specific offense for burning property to obtain insurance proceeds.

Key Term: Arson with Intent to Defraud an Insurer
Intentionally or maliciously burning property, often one’s own, for the purpose of obtaining or increasing insurance proceeds.

Key points:

• Often requires proof of intent to defraud.
• May apply even if the property is not a dwelling (e.g., a warehouse or store).
• Frequently graded separately or more severely than simple arson.
• May overlap with general fraud offenses.

This is a classic exam scenario: the owner is in financial trouble and sets his own building on fire to collect insurance. The analysis often requires you to:

• Recognize that burning one’s own building can be a crime under modern law.
• Distinguish common law arson (which would fail on “of another”) from statutory arson to defraud an insurer.

Reckless Burning and Lesser Offenses

Some jurisdictions provide lesser offenses for conduct that is reckless but may not rise to full arson under the statute.

Key Term: Reckless Burning
Causing a fire or explosion that damages property while acting recklessly with respect to the risk of such damage, often graded as a lesser offense than arson.

These statutes:

• Require recklessness, not purpose or knowledge.
• Often cover situations where the defendant did not specifically intend to burn the structure but consciously disregarded a substantial risk.
• May apply where the property is of lesser value or where the statute reserves “arson” for more serious fires.

On an MBE fact pattern, if the jurisdiction is described as having a separate “reckless burning” offense, consider whether the defendant’s mental state falls short of the specific statutory definition of arson and fits only the lesser reckless-burning offense.

Arson and Felony Murder

Arson is one of the classic BARRK felonies (burglary, arson, robbery, rape, kidnapping) that can serve as a predicate for felony murder.

Key Term: Felony Murder (Arson Predicate)
A homicide charge elevated to murder when a death occurs during the commission or attempted commission of an inherently dangerous felony, such as arson, if felony-murder requirements are satisfied.

Key points:

• If a death occurs during the commission or attempted commission of arson, the arson can support a felony murder charge, provided:
  • The death occurs during the commission, attempt, or immediate flight.
  • The death is a foreseeable result of the felony.
  • The felony is independent of the homicide (arson clearly is).
• Typical victims include:
  • Occupants of the building.
  • Firefighters or rescuers.
  • Bystanders killed by the spread of the fire.

On the MBE, you may need to:

• First determine whether arson has been committed or attempted, and then
• Use that determination to analyze felony murder liability.

Some exam-relevant details:

• Co-felon deaths: Under the majority “agency” view, if a non-felon (e.g., a firefighter or homeowner) kills a co-felon during the arson, the other felons are usually not liable for felony murder. Under a minority “proximate cause” view, they might be if the death is a foreseeable result of the felony.
• Bystander deaths: Most courts treat a bystander’s death caused by the fire as a natural and probable consequence of arson, supporting felony murder.

Because arson is inherently dangerous to life, its use as a felony-murder predicate is almost always valid on the MBE.

Attempt, Accomplice Liability, and Defenses

Because arson is a malice crime, standard inchoate and accomplice rules apply, but there are some subtleties the exam likes to test.

Attempted Arson

Key Term: Attempted Arson
Taking a substantial step toward committing arson with the specific intent to cause a burning of property defined by the arson statute.

Attempt is always a specific-intent crime, even when the completed offense is not. That means:

• Completed arson requires only malice (including recklessness).
• Attempted arson requires specific intent to cause a burning plus a substantial step.

Consequences:

• A defendant who recklessly creates a fire risk but does not desire or intend a fire cannot be guilty of attempted arson, because he lacks the specific intent to complete the crime.
• Voluntary intoxication can be a partial defense to attempted arson (because attempt is specific-intent) if it prevents the defendant from forming the intent to burn, but it is not a defense to completed arson.

Examples of substantial steps toward arson:

• Pouring gasoline around a building and striking a match.
• Setting a timed incendiary device within the building.
• Purchasing accelerants and going to the building at night, climbing onto the property, and beginning to place the accelerant on the walls.

Mere preparation (e.g., buying gasoline days in advance without further action) is not enough.

Accomplice Liability for Arson

Key Term: Accomplice Liability (Arson)
Liability imposed on one who aids, encourages, or commands another to commit arson, with the intent that the arson be committed.

Key points:

• A person who aids, encourages, or plans an arson, intending to facilitate it, can be convicted as a principal or accomplice to arson.
• Under the “natural and probable consequences” doctrine, an accomplice can also be liable for:
  • Arson of additional structures when the fire spreads in a foreseeable way.
  • Felony murder if a death occurs during the arson.

Examples:

• E supplies gasoline and detailed instructions to F, encouraging F to burn a rival’s store. F carries out the plan, and the building burns. E is guilty of arson as an accomplice.
• If the fire spreads to an adjacent building, both E and F can be liable for arson of that second building if the spread was a foreseeable risk of their conduct.

Withdrawal can be a defense for accomplices to future crimes if it is timely and effective (e.g., attempting to stop the arson and notifying authorities), but cannot undo liability for crimes already completed.

Defenses and Exam Traps

Common defenses and limitations include:

• Accident: If the fire is purely accidental and the defendant did not act with malice, there is no arson.

  • Example: A space heater unexpectedly malfunctions with no unreasonable conduct by the user.

• Insufficient burning (under common law): Smoke damage or heated but uncharred wood may defeat common law arson, though a modern statute might still apply.

  • Always parse whether the jurisdiction is applying strict common law or a modern statutory definition that dispenses with the charring requirement.

• Mistake about ownership or occupancy:

  • Mistake that you own the building is not a defense if the building is actually the dwelling of another, because “of another” focuses on occupancy.
  • Mistake about whether anyone lives there affects only the “dwelling” element, not malice. If it turns out to be a dwelling, you still have malice if you intentionally risked burning a building, regardless of whether you realized it was a dwelling.

• Voluntary intoxication:

  • Not a defense to completed arson (malice crime).
  • Potential defense to attempted arson (specific-intent crime).

• Insanity and duress:

  • Standard rules apply; neither is specific to arson, but they may be presented in multi-issue questions.

A very common exam trap is combining these factors. For example, an intoxicated defendant may accidentally start a fire through negligence and then, upon noticing it, deliberately let it burn to collect insurance. At that point, the defendant’s later malicious inaction can supply malice despite his earlier negligence and intoxication.

Worked Example 1.1

A sets fire to his own vacant house, intending to collect insurance. The fire spreads and damages a neighbor's home. Under modern statutes, can A be convicted of arson?

Answer:
Yes. Modern statutes typically cover burning one's own property, especially with fraudulent intent, and the spread to another's property makes A liable for arson as to the neighbor's home. Even though A owns the vacant house, many modern statutes treat burning one’s own building as arson when it endangers others or is done to defraud an insurer. A may also be guilty of a separate offense of arson with intent to defraud an insurer.

Worked Example 1.2

B, angry at her ex-partner, throws a lit match onto the partner's porch. The match causes only blackening of the paint, with no charring of the wood. Is this arson at common law?

Answer:
No. Blackening alone is not sufficient; there must be charring of the structure itself for common law arson. The facts describe only surface discoloration. Under a modern statute that does not require structural charring, however, B might still be liable if the statute defines arson broadly as intentionally causing fire damage to a structure.

Worked Example 1.3

A landlord owns a house that is leased to a tenant who lives there with her family. The landlord, angry about late rent, intentionally sets fire to the house at night, causing charring to an interior wall but relatively minor overall damage. Under common law, has the landlord committed arson?

Answer:
Yes. Common law arson required burning the dwelling of another, and “of another” is based on occupancy as a dwelling. The tenant and her family are the occupants, so the house is the dwelling of another with respect to the landlord. The fire caused charring of the structure, so the burning element is satisfied even though the damage was limited.

Worked Example 1.4

C, in a city apartment building, carelessly falls asleep while smoking in bed. The cigarette drops, ignites the bedding, and spreads to the wall, causing charring to the wall and serious damage to the apartment. C did not realize the risk of fire but a reasonable person would have. Is C guilty of arson at common law?

Answer:
No. Although there was a burning of the dwelling of another (assuming C is a tenant and the building is owned by someone else), C’s mental state is only negligent, not malicious. Arson requires at least recklessness—conscious disregard of a substantial risk. Because C did not actually perceive and consciously disregard the risk, the malice requirement is not met. C may be civilly liable and might face liability under any applicable negligent-burning statute, but not common law arson.

Worked Example 1.5

D, knowing that a basement is filled with flammable solvent vapors, lights a match to “see better” while searching for a box. D hopes no fire will start but realizes there is a serious risk and proceeds anyway. The vapors ignite, and the resulting explosion chars the basement walls. Under a modern statute that defines arson as “maliciously damaging a building by fire or explosion,” is D guilty of arson?

Answer:
Yes. D’s conduct shows reckless disregard of a known, substantial risk of fire, which satisfies malice. The explosion causes fire and charring to the structure, and the modern statute expressly includes damage by explosion. Even though D hoped to avoid a fire, he consciously disregarded the risk, so the mental state is sufficient.

Worked Example 1.6

E decides to “scare” his neighbor by setting fire to an empty trash can on the neighbor’s wooden porch, intending to put it out before it spreads. The fire unexpectedly ignites the porch railing, charring the wood before E can extinguish it. Under common law, is E guilty of arson?

Answer:
Yes. E intentionally started a fire on the neighbor’s porch, creating a substantial and obvious risk that the structure would burn. Even though he hoped to control the fire, he acted with at least reckless disregard of that risk. The charring of the porch railing satisfies the burning requirement, and the neighbor’s house is the dwelling of another, so all elements of common law arson are met.

Worked Example 1.7

F, intoxicated, pours gasoline in his own single-family house (where he lives alone) and lights it to “start over.” The jurisdiction follows strict common law definitions and has no modern arson statute. The house burns to the ground, but the fire does not spread to any neighboring structures. What is F’s criminal liability?

Answer:
F is not guilty of common law arson because the house is his own dwelling, not the dwelling of another. However, F is guilty of the separate common law misdemeanor of houseburning if the house is in a city or so close to other houses that they were endangered (even if they did not actually burn). His voluntary intoxication is not a defense because arson and houseburning are malice crimes, not specific-intent crimes.

Worked Example 1.8

G, intending to commit arson, buys gasoline and drives to a rival’s store late at night. He pours gasoline around the building and is about to strike a match when he sees police approaching and flees without lighting the fire. Under a modern statute, what is G’s best characterization of liability?

Answer:
G is guilty of attempted arson, not completed arson. He had the specific intent to burn the store and took a substantial step (pouring gasoline around the building). However, no burning occurred. Attempt liability is appropriate even though arson itself requires only malice. Voluntary intoxication, if present, could be raised as a defense only to the attempt (specific intent), not to completed arson.

Exam Warning

On the MBE, do not confuse "malice" with "intent to cause harm." Malice for arson includes reckless disregard of a substantial risk of burning, even if the defendant did not specifically intend to burn the property or harm anyone. Also, do not confuse negligence (which is insufficient) with recklessness (which is sufficient) for arson.

Other frequent traps:

• Assuming that any fire damage equals arson without analyzing whether the structure itself was burned under common law.
• Forgetting that “of another” is based on who lives there, not who owns the property.
• Ignoring modern statutory language in the fact pattern that expands arson beyond dwellings or includes explosions.
• Overlooking the difference between completed arson (malice) and attempted arson (specific intent), especially when voluntary intoxication is raised.
• Failing to see that arson can serve as the predicate felony for felony murder when a death results from the fire.

Revision Tip

Remember: At common law, burning your own dwelling was not arson. Modern statutes often abolish this limitation—check the facts for statutory language. Also keep in mind that completed arson is a malice crime (no voluntary intoxication defense), but attempted arson still requires specific intent to bring about a burning.

Key Point Checklist

This article has covered the following key knowledge points:

• Arson at common law required malicious burning of the dwelling of another.
• Malice includes intent, knowledge, or reckless disregard of a substantial and obvious risk of burning; mere negligence is not enough.
• "Burning" at common law means charring of the structure itself, not just smoke damage, scorching, or damage only to contents.
• Fires caused solely by explosions without fire did not satisfy common law arson, but modern statutes usually include damage by explosion.
• Common law arson required that the structure be a dwelling used for sleeping; temporary absence does not change this.
• “Of another” focuses on occupancy as a dwelling, not legal ownership; a landlord can commit arson of a tenant’s dwelling.
• At common law, burning your own dwelling was not arson but could be the separate offense of houseburning if other houses were endangered.
• Modern statutes expand arson to include burning any building, many structures, and often personal property, and usually treat burning one’s own property as arson in certain circumstances.
• Modern statutes commonly include damage caused by explosions within arson definitions and may eliminate the charring requirement.
• Related offenses include houseburning, arson with intent to defraud an insurer, and lesser reckless-burning offenses.
• Arson is one of the BARRK felonies and can serve as the predicate felony for felony murder when a death results from the fire.
• Attempted arson requires specific intent to burn and a substantial step, so voluntary intoxication can sometimes be a defense to attempt but not to completed arson.
• Accomplices who aid or encourage arson can be liable for the arson and for foreseeable spread of the fire, as well as felony murder where applicable.
• Defenses and limitations include lack of malice, purely accidental fires, and (under common law) insufficient structural damage to constitute a burning.

Key Terms and Concepts

• Arson (Common Law)
• Malice (Arson)
• Burning (Arson)
• Dwelling (Arson)
• Dwelling of Another (Arson)
• Arson (Modern Statute)
• Houseburning
• Arson with Intent to Defraud an Insurer
• Reckless Burning
• Felony Murder (Arson Predicate)
• Attempted Arson
• Accomplice Liability (Arson)