Hitchler, W.H.

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Arson Affected by the Act of April 25, 1929

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Volume 34 Issue 2 1-1-1930 Arson Affected by the Act of April 25, 1929 W.H. Hitchler Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation W.H. Hitchler, Arson Affected by the Act of April 25, 1929, 34 DICK. L. REV. 131 (1930). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol34/iss2/7 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact lja10@psu.edu. DICKINSON LAW REVIEW 131Finally, if one wrongdoer is entitled either to contri-bution or to indemnity, his proper remedy is an action ofassumpsit on the theory that the duty of the other wrong-doer is quasi-contractual.40  If contribution is sought fromseveral persons, equity has jurisdiction on the ground ofprevention of multiplicity of suits.4 7Fred S. ReeseARSON AS AFFECTED BY THE ACT OF APRIL25, 1929, P. L. 767-The act of April 25th, 1929,1 is entitled,in part, "An act to define arson": the first section of theact declares that any person who does certain things "shallbe guilty of the felony of arson"; the sixth section of theact repeals section one hundred and thirty-seven of the actof March 31st, 1860,2 by which arson was previously de-fined.The act makes important changes in the law of arson.These changes may be exposited by considering: (1) Thenature of the thing affected; (2) The ownership of thething affected; (3) The act done to the thing affected; (4)The mental attitude of the actor.Arson at common law was defined as the malicious andwilful (or voluntary) burning of the house of another.3The term "house" was interpreted as meaning dwellinghouse, and included buildings located within what wasthen known as the "curtilage."4The act of March 31st, 1860, provided that the burningof any of the following three classes of buildings shouldconstitute arson: (1) Any factory, mill, or dwellingtwo or more wrongdoers, as to whether plaintiff may sue them jointlyor must sue them separately, as to effect of judgment against one,and similar questions, see Hill v. American Stores Co., 80 Pa. Super.338 (1923); Betcher v. McChesney, 255 Pa. 394 (1917).41Phila. v. Reading Co., 295 Pa. 183 (1929). Assumpsit was suc-cessfully used, without objection, in Armstrong County v. ClarionCounty, 66 Pa. 218 (1870); and in Horbach's Adnmr. v. Elder, 18 Pa.33 (1851).'7Steigerwalt v. Smeych et al., 9 Pa. Super. 363 (1899). In Boyerv. Bolender, 129 Pa. 324 (1889), one wrongdoer sued in equity torecover contribution fronm nine other wrongdoers.' P. L, 767.2P. L. 382.35 C. J. 539; Trickett's Crim. L. p. 164.45 C. J. 547.DICKINSON LAW REVIEWhouse; (2) any kitchen, shop, barn, stable or other out-house that is parcel of a dwelling house, or belonging oradjoining thereto; (3) any other building by the burningof which a dwelling house shall be burnt.The provision that the burning of a mill or factoryshould constitute arson changed the definition of arson.At common law thi burning of a mill or factory did notconstitute arson. 5The words "any kitchen, shop, barn, stable or otherouthouse that is parcel of such dwelling, or belonging oradjoining thereto," were probably intended to embracebuildings of a character similar to that of buildings embra-ced by the common law term "buildings within the curti-lage." The change in phraseology was probably dictatedby the entire change in conditions of life which renderedthe phrase 'buildings within the curtilage" difficult ofdefinition and application.6 The words of the statute wereintended to include "only such buildings the burning ofwhich by reason of their proximity to a dwelling housewould endanger the safety of the latter. ' 7 The burning ofany such building was arson at common law.8The provision of the statute that the "burning of anyother building by means whereof a dwelling house shallbe burnt" probably did not modify the common law. Atcommon law if there was an intent to burn a building anda dwelling house was burnt, arson was committed, eventhough there was no intent to burn the dwelling house, atleast if the burning of the latter was the natural and pro-bable consequence of the burning of the former." Thisprovision is omitted from the act of 1929. Its omissionprobably does not change the law. In describing the build-ings the burning of which shall constitute arson, the actof 1929 uses the same words as the act of 1860 except thewords mentioned and the words "mill or factory." Theburning of a mill or factory is no longer arson but is madea felony by section two of the act of 1929.At common law the building burnt must be that "of an-other" but as arson was regarded as a crime against thesecurity of the habitation and not against property, thehouse was regarded, so far as the crime of arson was con-cerned, as being the house of the occupant rather than that55 C. J. 550. See Hill v. Comm., 98 Pa. 192.6McLain's Crim. L. p. 475.7Hill v. Comm., 98 Pa. 192.sHill v. Comm., 98 Pa. 192.95 C. J. 541; Clark and Marshall on Crimes, p. 566.DICKINSON LAW REVIEW 133of the owner. 10Accordingly it was held that the burning of an unoccu-pied house was not arson.11 One was likewise not guiltyof arson who burnt a house which he owned and occupied,or which he occupied but did not own.' 2 But one was guil-ty of arson who burned a house which was occupied byanother, even though the house was owned by the personburning it.'-The one hundred and thirty-seventh section of the actof March 31st, 1860, provided that to constitute arson thebuilding burnt must be that "of another." Section one ofthe act of June 10, 1881,1 provides: "No principle or policyof law shall, because the defendant shall have been in pos-session as tenant or otherwise at the time of the commis-sion of the offense, exempt any person from convictionand punishment, who shall wilfully and maliciously burn orcause to be burned, or cause or attempt to set fire to, anybuilding, but such person shall be liable to conviction andpunishment in the same manner and to the same extent asif not in possession."The act of 1860 did not change the common law rulethat one was not guilty of arson who burned a housewhich he owned and occupied,"5 but the act of 1881 changedthe common law by providing that one who burned a housewhich he occupied but did not own was guilty of arson. "The act of 1929 does not expressly repeal the act of1881, and it provides that one who burns one of the desig-nated buildings is guilty of arson whether the building isthe "property of himself or another." Is the burning of adwelling house by one who occupies and owns it now ar-son? It was not arson at common law nor under the actsof 1860 and 1881.At common law the crime of arson involved a burn-ing. An attempt to burn was not arson.17 The act.of 1860provided that one who attempted to set fire to, with intentto burn, one of the designated buildings should be guilty ofarson. Under this statute one who attempted to burn one'Or C. J. 553.115 C. J. 545. But see Comm. v. Browne, 3 Rawle 207.,25 C. J. 553. But see Comm. v. Levine, 82 Pa. Super. Ct. 105.1-35 C. J. 553, 554.14P. L. 117."5Comm. v. Herr, 19 Dist. Rep. 285; Comm. v. Williams, 14 Dela-ware Co. Rep. 101.2'Comm. v. Levine, 82 Pa. Super. Ct. 105.175 C. J. 543.DICKINSON LAW REVIEWof the designated buildings was guilty of arson."' The actof 1929 omits the words "attempts to set fire to," and thefifth scction of the act provides that any person who "at-tempts to set fire to or attempts to burn" one of the desig-nated buildings shall be guilty of a misdemeanor. Underthis act an attempt to burn one of the designated buildingswould therefore seem not to be arson.But the act of 1860 provided and the act of 1929 pro-vides that setting fire to as well as burning shall constitutearson. It has been held that "setting fire to" does not con-stitute arson at common law." It would seem thereforethat the use of the words "set fire to" in the statute wouldenlarge the common law offense so that an actual burningwas no longer necessary to constitute the crime. But themajority of cases in other jurisdictions hold that thesewords are equivalent to the word "burn" as used at com-mon law, and are to be given no larger meaning,"20 "ex-cept," it has been vaguely stated, "where it was the evidentintent of the legislature to create a separate and distinctoffense. '2 1  Was this the intention of the legislature ofPennsylvania? If so, how does the offense of "setting fireto" which by the act of 1929 is arson-a felony-differ fromthe offense of attempting to burn which is a misde-meanor?The mental element of arson at common law was de-scribed by the words malicious and wilful (or voluntary).The act of 1860 used the words "malicious and voluntary,"and the act of 1929 uses the words "wilful and malicious."Probably neither of these statutes was intended to changethe mental element of the crime. Arson at common lawrequired an intent to burn the building upon the burningof which the prosecution was predicated or to burn someother building from the burning of which the burning ofthe former resulted as a natural and probable consequence.An unintentional burning, even though due to negligence,save in the case just mentioned was not arson, unless ac-cording to some, but not all, of the authorities the burningresulted from an attempt to commit a felony.22W. H. HitchlerIsComm. v. Werderhold, 112 Pa. 584.19 Cochrane v. State, 6 Md. 400.20C. J. 544.215 C. J. 544.225 C. J. 542; Clark and Marshall on Crimes, p. 566,

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Arson Affected by the Act of April 25, 1929

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