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Model jury instruction: arson of a dwelling house

From Comm. v. Pfeiffer, 482 Mass. 110 (2019) appendix

Table of Contents

Model jury instruction

In this case, the defendant is charged with arson of a dwelling house.

In order to prove the defendant guilty of this offense, the Commonwealth must prove three elements beyond a reasonable doubt:

First: That the defendant set fire to, burned, or caused to be burned a building;

Second: That the building was a dwelling house; and

Third: That the defendant acted wilfully and maliciously.

As to the first element, the Commonwealth must prove beyond a reasonable doubt that the defendant set fire to, burned, or caused to be burned a building. This requires proof that some portion of the building must have actually been on fire or burned. There is, however, no requirement that the building be consumed by fire or destroyed. Proof that some portion of the building was burned or charred is sufficient.

As to the second element, the Commonwealth must prove beyond a reasonable doubt that the building was a dwelling house, a building adjoining or adjacent to a dwelling house, or a building whose burning resulted in a dwelling house being burned. A "dwelling house" means a building used as a dwelling, such as a single-family or multifamily house, an apartment house, tenement house, hotel, boarding house, dormitory, hospital, institution, sanatorium, or other building where people live or reside. It does not matter whether the dwelling house or other building was occupied or unoccupied at the time, although the Commonwealth must prove that the dwelling house was capable of being occupied.

As to the third element, the Commonwealth must prove beyond a reasonable doubt that the defendant acted wilfully and maliciously. Let me discuss those in reverse order, since the word "wilfully" is incorporated in the word "maliciously."

"Malicious" refers to the wilful doing of an unlawful or injurious act without excuse.

"Wilful" means intentional and by design in contrast to that which is thoughtless or accidental.

To prove the third element, the Commonwealth does not necessarily have to prove that the defendant acted for the purpose of setting fire to or burning some portion of the dwelling house or other building. Rather, the Commonwealth may meet its burden of proof as to this third element by proving one of two things beyond a reasonable doubt: either that, without justification or excuse, the defendant did, in fact, act for the purpose of setting fire to, burning, or causing to be burned some portion of the dwelling house or other building, or that, without justification or excuse, the defendant intentionally engaged in an unlawful or injurious act that a reasonable person in the defendant's position would have known created a plain and strong likelihood that some portion of the dwelling house or other building would be set on fire or burned.

Keep in mind that the act that results in some portion of the dwelling house or other building being set on fire or burned must be deliberate and intentional.

If you have a reasonable doubt as to whether the fire or burning was accidental, because it was caused by a negligent, thoughtless, or mistaken act of the defendant, you may not find that the defendant acted wilfully and maliciously. Accidental fires or burnings are not arson.

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Last updated: May 20, 2019
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