§ 2-26 Arson in the Second Degree

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§ 2-26 Arson in the Second Degree

Section 16-11-110 of the South Carolina Code of Laws, last amended by Act 154 of 2016, provides:

(B) A person who willfully and maliciously causes an explosion, sets fire to, burns, or causes to be burned or aids, counsels, or procures a burning that results in damage to a dwelling house, church or place of worship, public or private school facility, manufacturing plant or warehouse, building where business is conducted, institutional facility, or any structure designed for human occupancy including local and municipal buildings, whether the property of the person or another, is guilty of the felony of arson in the second degree . . .

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(D) For purposes of this section, 'damage' means an application of fire or explosive that results in burning, charring, blistering, scorching, smoking, singeing, discoloring, or changing the fiber or composition of a dwelling house, building, structure, or any property specified in this section.

(1) A Willful and Malicious Act

Willful means intentional. Willful means it was not done by accident. A willful act is one done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say with bad purpose either to disobey or disregard the law.

What does criminal intent mean in the law? Criminal intent is a state of mind which operates jointly with an act or omission in the commission of a crime. Criminal intent is a mental state of conscious wrongdoing. Criminal intent includes those consequences which: (a) represent the very purpose for which an act is done; or (b) are known to be substantially certain to result, regardless of one's desire. Intent may be shown by acts and conduct of the defendant and other circumstances from which you may naturally and reasonably infer intent.

Malice is defined as being hatred or ill-will. Malice, in its legal sense, signifies a condition of the mind which shows a heart regardless of social duty and fatally bent upon mischief. Malice indicates a wicked or depraved spirit intent on doing wrong. Malice is a legal term implying wickedness and excluding a just cause or excuse. It is the doing of a wrongful act intentionally and without just cause or excuse. The term malice indicates a formed purpose and design to do a wrongful act under circumstances that exclude any legal right to do it.

Although malice must be aforethought, there is no requirement that it must exist for any appreciable length of time before the commission of the act. It may be conceived at the very moment the act occurs. Malice need not be in the mind of the one doing the burning any particular length of time before the act of burning in order to render the burning arson. If malice is present in the mind of the one doing the burning any length of time before the act, then its presence would be sufficient to render the burning arson. This malice need not be express, but may be inferred.

(2) A Burning that Results in Damage to a Dwelling House or Other Statutorily-Specified Structure or Property

In an arson case, the corpus delicti, Latin for "body of the crime," consists of two elements: (1) the burned building, structure, or other property; and (2) the criminal act of some person in causing the burning. As in all other crimes, the burden is upon the State to prove the corpus delicti beyond a reasonable doubt.

Where nothing appears but the mere fact that a dwelling house or other statutorily-specified structure or property was consumed by fire, the presumption is that the fire was the result of accident or some providential cause, rather than a willful act.

The burning must result in damage to the dwelling house or other statutorily-specified structure or property. It is not necessary that the dwelling house, building, structure, or property be consumed or destroyed, only that it be damaged. Pursuant to section 16-11-110(D), "damage" means "an application of fire or explosive that results in burning, charring, blistering, scorching, smoking, singeing, discoloring, or changing the fiber or composition of a dwelling house, building, structure, or any property specified in this section."

(3) The Burning Must Have Been to a Dwelling House or Other Statutorily-Specified Structure or Property

With respect to arson, section 16-11-10 defines "dwelling house" as "any house, outhouse, apartment, building, erection, shed or box in which there sleeps a proprietor, tenant, watchman, clerk...