State v. Nelson, No. 2393--II

• Court: Court of Appeals of Washington
• Writing for the Court: REED; PETRIE, C.J., and PEARSON
• Citation: 561 P.2d 1093,17 Wn.App. 66
• Docket Number: No. 2393--II
• Decision Date: 08 March 1977
• Parties: The STATE of Washington, Respondent, v. Rinehart H. NELSON, Appellant.

Page 66

17 Wn.App. 66 561 P.2d 1093 The STATE of Washington, Respondent,
v.
Rinehart H. NELSON, Appellant. No. 2393--II. Court of Appeals of Washington, Division 2. March 8, 1977.

Page 67

[561 P.2d 1094] John L. Farra, Aberdeen, for appellant.

David L. Edwards, Deputy Pros. Atty., Curtis Janhunen, Pros. Atty., Montesano, for respondent.

REED, Judge.

Michael Bens had been reading in bed at about 2 a.m. on January 5, 1976 when he noticed a smell of smoke in his Aberdeen home. After a short search, he came upon the defendant, Rinehart Nelson, standing in the back yard near the entrance to a crawl space under the house, holding a book of matches in his hand. Subsequent investigation revealed flammable material, smoke, charred areas, and one burnt match under the house in the near vicinity of the crawl space entrance. The match was identical to those discovered on the person of the defendant. Nelson was arrested shortly thereafter and charged with first-degree arson.

At Nelson's subsequent trial, his attorney repeatedly attempted to present evidence which would indicate his state of intoxication at the time of the incident. The majority of this evidence was disallowed by the trial judge, who felt that it was not relevant where the crime charged did not require proof that the defendant had to have formed a specific intent. The jury found defendant guilty

Page 68

and he appeals from judgment and sentence entered thereon.

In his appeal, defendant assigns two bases for error. First, he argues that evidence which was relevant to his mental condition should have been admitted for consideration by the jury, and that the jury should have received an instruction regarding the possible effect of alcohol upon his capacity to form the requisite malicious intent. Second, he challenges the statute under which he was charged, maintaining that his activity gave the prosecutor discretion to charge either a felony or a misdemeanor for the same conduct.

The crime of first-degree arson requires a showing that the defendant acted willfully and maliciously:

Every person who shall wilfully and maliciously--

(1) Burn or set on fire in the nighttime the dwelling house of another, or any building in which there shall be at the time a human being; or

(2) Set any fire manifestly dangerous to any human life, shall be guilty of arson in the first degree and be punished by imprisonment in the state penitentiary for not less than five years.

RCW 9.09.010. ¹ Nelson argues that he had the right to place before the jury evidence tending to show that he lacked the capacity to form the requisite willful or malicious intent. He asserts that former RCW 9.01.010(3) ² requires a showing of specific intent which may be rebutted. That statute reads as follows:

(3) 'Malice' and 'maliciously' shall import an evil intent, wish or design to vex, annoy or injure another person. [561 P.2d 1095] Malice may be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a wilful disregard of social duty.

Page 69

He further argues that former RCW 9.01.114 ³ entitled him to have the issue of his intoxication placed before the jury for their consideration in determining whether he was capable of forming the necessary purpose or intent:

No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration in determining such purpose, motive or intent.

The corpus delicti of the crime of arson consists of two elements: (1) that the building in question burned; and (2) that it burned as a result of the willful and criminal act of some person. State v. Turner, 58 Wash.2d 159, 361 P.2d 581 (1961); State v. Pienick, 46 Wash. 522, 90 P. 645 (1907); State v. Zuercher, 11 Wash.App. 91, 521 P.2d 1184 (1974). At common law, specific intent to burn a particular thing or to injure a particular person was unnecessary, it being sufficient to show that there was a general malice or intent to burn some structure. 6A C.J.S. Arson § 6 (1975); 2 R. Anderson, Whartson's Criminal Law and Procedure-Arson § 390 (1957); R. Perkins, Criminal Law, ch. 3, § 2A, pp. 173--176 (1957). Motive is not an element of the crime of arson in either the first or second-degree. State v. Turner, supra. The first issue, then, is whether RCW 9.01.010(3), which defines 'malice' and 'maliciously,' necessitates a showing of specific intent over and above a general criminal intent (mens rea) as a requisite element of the crime of first-degree arson.

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