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Both Arson 1 and Arson 2 are considered serious crimes in the state of Massachusetts. Arson 1 and Arson 2 differ in regard to evidence beyond a reasonable doubt.
The first element the Commonwealth must prove beyond a reasonable doubt is that the defendant set fire to, burned or caused to be burned the building in question. This requires that some portion of the building must have actually been on fire and burned.
The second element the Commonwealth must prove beyond a reasonable doubt is that the building burned was a dwelling house, a building adjoining or adjacent to a dwelling house, or any building the burning of which results in a dwelling house being burned. The phrase “dwelling house” means and includes “all buildings used as dwellings, such as apartment houses, tenement houses, hotels, boarding houses, dormitories, hospitals, institutions, sanitoria, or other buildings” where people live or reside. The Commonwealth must prove that the building is capable of being occupied as a dwelling, is adjoining or adjacent to a dwelling house, or is a building the burning of which results in a dwelling house being burned. Further, it does not matter if the defendant owned the dwelling house or if it was owned by another.
The third element the Commonwealth must prove beyond a reasonable doubt is that the defendant willfully and maliciously set fire to or caused the building to be burned. Willfulness and malice are required to constitute the state of mind necessary to commit arson. The word willfully means that the act was intentional and by design, rather than an act that is thoughtless or accidental. A person acting willfully intends both his or her conduct and the resulting harm. The requirement of willfulness means that accidentally or negligently caused burnings are not arson.
The Commonwealth also must prove beyond a reasonable doubt that the defendant acted maliciously or with malice. The terms of “malice” and “maliciously” have a different meaning under this statute than the ordinary definition of those terms. Malice characterizes all acts done with an evil disposition, with a wrong and unlawful motive or purpose or the willful doing of an injurious act without lawful excuse. A burning is malicious if it is done with any wrongful or unlawful motive or purpose and without lawful excuse.
To prove Arson 2, the defendant must have aided, counseled, or procured the burning of a dwelling house or building, and that a burning occurred and the building was or was joined to a dwelling house.
If the Commonwealth fails to prove beyond a reasonable doubt that a defendant is guilty of arson under the first theory of arson, then you could be considered guilty under the second theory of arson. In order to prove the defendant guilty under the second theory of arson the Commonwealth must prove beyond a reasonable doubt:
In order to prove this element of arson, it is not sufficient for the Commonwealth to prove that the defendant merely knew that a crime was going to be committed. Mere association with the person who set the fire is not enough. Mere presence at the scene of the crime is not enough, even when combined with knowledge of the planned act. A mere failure to take appropriate steps to prevent the commission of the crime or mere acquiescence is not sufficient.
The Commonwealth must prove that a defendant aided, counseled or procured the burning of a dwelling house or building. This means that the defendant participated in committing the crime of arson by agreeing to stand by, at, or near the scene of the crime to render aid, assistance or encouragement, if it became necessary, to the person who set fire to or caused the burning of the dwelling house; or by assisting the perpetrator to make an escape from the scene; or by procuring another person to burn a dwelling house.
Did you know, for instance, that a defendant’s mere presence at the scene, even combined with the knowledge of the planned act, isn’t enough to prove Arson 2? Thus, it is vital to know your rights if you are faced with Arson 1 or Arson 2 charges. It is highly recommended to find an Arson 1 and Arson 2 lawyer.
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Brad Bailey is the go-to defense attorney for white collar crimes, federal crimes, as well as serious state felony charges. He is without question one of the most experienced criminal defense attorneys in Boston.