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OUJI-CR 5-9

ARSON IN THE FOURTH DEGREE (1404(B)) - ELEMENTS

No person may be convicted of arson in the fourth degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, a willful and malicious;

Second, placing/distributing;

Third, of any flammable/explosive/combustible material/substance/device;

Fourth, in/on (any building/structure)/(the contents of any building/ structure)/(any property that is insured)/(any real/personal property valued at $50 or more);

Fifth, by (an arrangement)/(a preparation) with intent eventually to (set fire to)/burn/(procure the setting fire to)/(procure the burning of) such property;

Sixth, such placing/distributing was performed/procured by the defendant.

______________________________

Statutory Authority: 21 O.S. Supp. 2000, § 1404.

Committee Comments

Arson in the fourth degree is a specific attempt statute and prohibits the State from bringing an arson charge under the general attempt statutes. See Ex parte Smith, 95 Okl. Cr. 370, 246 P.2d 389 (1952). Subsection A defines an attempt which either fails or is thwarted by unforeseen external circumstances. Subsection B criminalizes conduct that would otherwise be deemed "preparatory," and thus insufficient to constitute an attempt, as opposed to the "perpetrating" conduct encompassed within subsection A. Under subsection B, merely distributing or placing flammable or combustible material in or on any property, with the requisite intent eventually to burn such property, is a criminal attempt. See generally W. LaFave & A. Scott, Criminal Law § 59, at 423-38 (1972); R. Perkins, Criminal Law 557-66 (2d ed. 1969).

That subsection B is in derogation of the common law dichotomy between preparatory acts as noncriminal and perpetrating acts as criminal attempts is illustrated by an example provided by Professor Perkins:

The time of intended perpetration is a factor to be considered, and may be controlling in certain situations. Suppose D, intending to burn down the dwelling house of X, has entered the building with combustible materials which he has so arranged that the lighting of a fuse will be followed in due time by a roaring fire. If D has no intention of lighting the fire now, -- if he has merely "set the stage" so the fire can be started without loss of time when he returns on a future occasion -- this is merely preparation. It is not an attempt to commit arson. Had D, on the other hand, intended to light the fire at that time he would be guilty of attempted arson although arrested before he struck the match. If such was his intention, in fact, he was guilty of attempted arson when he entered the building, or even before an actual entry was accomplished.

Perkins, supra, at 559-60 (citations omitted).

Under subsection B of section 1404, the act of arranging the combustible materials, with intent eventually to accomplish the burning of the building, would constitute an attempt.

(2000 Supp.)


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