L. Arson and Related Offenses
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L. Arson and Related Offenses
1. Common Law Arson
Arson, a common law felony defined as the malicious burning of the dwelling of another, encompasses "the burning of an outhouse within the curtilage of the mansion house . . . ." Gage v. Shelton, 37 S.C.L. (3 Rich.) 242, 248 (1832). See generally Perkins and Boyce, 273-74. Because the common law offense has not been abrogated, it is still in effect. For some time, however, arson has been proscribed by statute as well. Arson, for purposes of impeachment, is a crime of moral turpitude. State v. Yates, 280 S.C. 29, 37, 310 S.E.2d 805, 810 (1982), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).
This common law offense focuses on the threat to habitation. Consequently, arson is an offense against habitation rather than against property, so that an indictment is sufficient if it identifies either the one in possession or both the one in possession and the owner. State v. Copeland, 46 S.C. 13, 23 S.E. 980 (1896). However, an indictment identifying only the owner and not the occupant has been deemed sufficient as well. State v. Carter, 49 S.C. 265, 27 S.E. 106 (1897). At any rate, the person identified in the indictment as the owner or occupier must be established to be so at trial. State v. Alford, 142 S.C. 43, 140 S.E. 261 (1927). Alford is a burglary case, but, as will be developed, the offenses of arson and burglary share much common ground. While at common law arson could not be committed as to one's own habitation, State v. Sarvis, 45 S.C. 668, 24 S.E. 53 (1896), this has been changed by the statute. S.C. Code Ann. § 16-11-110 (Supp. 2012). This is a typical statutory reaction to the realization that a burning house poses a substantial threat to life (firemen and neighbors as well as occupants) regardless of who owns or occupies the structure. Perkins and Boyce, 284.
2. The Arson Statutes
The arson statute, revised in 2002 and again in 2010, provides:
(A) A person who wilfully 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, building, structure, or any property whether the property of himself or another, which results, either directly or indirectly, in the death of a person is guilty of the felony of arson in the first degree and, upon conviction, must be imprisoned not less than thirty years.
(B) A person who wilfully 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, building, structure, or any property whether the property of himself or another, which results, either directly or indirectly, in serious bodily injury to a person is guilty of the felony of arson in the second degree and, upon conviction, must be imprisoned not less than three nor more than twenty-five years.
(C) A person who wilfully 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, building, structure, or any property, whether the property of himself or another, which results, either directly or indirectly, in bodily injury to a person or damage to the property is guilty of the felony of arson in the third degree and, upon conviction, must be imprisoned not more than fifteen years.
(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 building, structure, or any property specified in this section.
S.C. Code Ann. § 16-11-110 (Supp. 2012).
First degree arson consists of arson of any type of structure that results in death. Second and third degree arson do not involve death.
First degree arson is a violent offense, a most serious offense, a no parole offense, and a no youthful offender act offense. Second degree is a violent offense, a serious offense, a no parole offense, and a no youthful offender act offense. Third degree arson does not fall into any of these categories.
Article 7, "Bombs, Destructive Devices, and Weapons of Mass Destruction" of South Carolina Code, § 16-23-720, became effective March 7, 2000, and was amended effective July 2, 2002. It is a comprehensive article concerned with the manufacture, possession of, use, teaching about or demonstrating a range of weapons including, among others, biological weapons, bombs, destructive devices, explosives, and incendiary devices. Using such a device to damage a "building or other real or personal property" (or counseling such use or attempting such damage) is a felony punishable for from 10 to 25 years. Section 16-23-720(B). Old sections 16-11-540 to -555 are repealed.
If the act results in death of another and there was malice aforethought the penalty is death, life, or a mandatory minimum of 30 years. If death but no malice aforethought, the penalty is from 10 to 30 years. Section 16-23-720(A). While the death penalty provision lacks the constitutionally required bifurcated procedure of S.C. Code § 16-3-20 et seq. (2003 and Supp. 2012) (see...
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