State v. Spino

Decision Date17 January 1963
Docket NumberNo. 36139,36139
Citation61 Wn.2d 246,377 P.2d 868
CourtWashington Supreme Court
PartiesThe STATE of Washington, Appellant, v. William Van Pelt SPINO, Respondent.

James J. Solan, Pros. Atty., L. Edward Brown, Deputy Pros. Atty., Montesano, for appellant.

Manley & Kirkwood, Aberdeen, for respondent.

ROSELLINI, Judge.

In this action an attack is made upon the constitutionality of RCW 9.09.020, defining arson in the second degree. This statute provides:

'Every person who, under circumstances not amounting to arson in the first degree, shall wilfully burn or set on fire any building, or any structure or erection appurtenant to or adjoining any building, or any wharf, dock, threshing machine, threshing engine, automobile or other motor vehicle, motorboat, steamboat, sailboat, aircraft, bridge or trestle, or any hay, grain, crop or timber, whether cut or standing, or any lumber, shingle or other timber products, or other property, shall be guilty of arson in the second degree, and shall be punished by imprisonment in the state penitentiary for not more than ten years, or by a fine of not more than five thousand dollars, or by both.'

The trial court sustained the respondent in his contention that the act constitutes an arbitrary and unreasonable exercise of the police power, because it makes possible the punishment of acts which have no reasonable relation to the harm which the legislation was intended to prevent.

The state concedes that if the act permits the prosecution of any person who sets a fire, regardless of whether that fire is intended or naturally tends to injure or defraud another, it is an arbitrary exercise of the police power. But it is the position of the state that the act should be construed to apply only to persons who set fires maliciously, that is, with the intent to injure or defraud. It is the theory of the state that the provisions of the common law should be read into the act, and at common law, malice was an element of the crime of arson. RCW 9.01.150 provides:

'The provisions of the common law relating to the commission of crime and the punishment thereof, insofar as not inconsistent with the institutions and statutes of this state, shall supplement all penal statutes of this state and all persons offending against the same shall be tried in the superior courts of this state.'

It would seem that this statute has reference to common law crimes which have not been codified or abrogated, in view of the provision that 'all persons offending against the same shall be tried in the superior courts of this state.' If its purpose were that for which the state argues--to add to a statutory crime any element which existed at common law but was omitted by the legislature--it would greatly curtail the power of the legislature to change the common law.

Be that at is may, the section cannot apply in this instance, for there was no common law crime of second degree arson. At common law, arson is the malicious and wilful burning of the house or outhouse of another man. 6 C.J.S. Arson § 1, page 718. The offense was against the security of habitation and had reference to the possession rather than the property itself. The burning of one's own property, while in possession thereof, would not constitute arson. In short, there was no common law crime to which we can look to supply a missing element in the crime as defined by the statute before us, assuming it would be proper to do so had there been such a crime at common law.

It is also urged that the rules of statutory construction, applicable where the language is ambiguous, should be applied; and that under these rules, the statute must be construed to require proof of malice, in order to avoid an absurd and intolerable result.

RCW 9.01.010 defines malice as follows:

'(3) 'Malice' and 'maliciously' shall import an evil intent, wish or design to vex, annoy or injure another person. * * *'

It will be noted that RCW 9.09.020 omits the word 'malice,' makes no reference to the 'property of another' and is silent as to the intent to defraud or vex another. It uses only the word wilful.

When the trial court was asked to construe the statute as requiring proof of malice, it said: 'This would put the Courts into the position of defining a crime in place of the Legislature which has attempted to do so.'

The learned trial judge further observed in regard to the statute:

'When we come to the Second Degree Arson statute, if 'wilfully' is given its ordinary...

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44 cases
  • State v. Floyd
    • United States
    • Washington Court of Appeals
    • December 17, 2013
    ...holding that “willfully” meant “ ‘intentionally and designedly.’ ” Stewart, 73 Wash.2d at 704, 440 P.2d 815 (quoting State v. Spino, 61 Wash.2d 246, 377 P.2d 868 (1963)) ¶ 36 Current law, however, provides that an action is taken “willfully” if the State proves the defendant acted “knowingl......
  • Ketcham v. King County Medical Service Corp.
    • United States
    • Washington Supreme Court
    • November 16, 1972
    ...safety, morals and welfare of the people. County of Spokane v. Valu-Mart, Inc., 69 Wash.2d 712, 419 P.2d 993 (1966); State v. Spino, 61 Wash.2d 246, 377 P.2d 868 (1963); Tukwila v. Seattle, 68 Wash.2d 611, 414 P.2d 597 (1966). The statute must pass the judicial test of reasonableness, and t......
  • Spokane County v. Valu-Mart, Inc.
    • United States
    • Washington Supreme Court
    • November 10, 1966
    ...morals, or welfare of the people. This exercise of police power must pass the judicial test of reasonableness. Accord: State v. Spino, 61 Wash.2d 246, 377 P.2d 868 (1963); Henderson v. Antonacci, 62 So.2d 5, 8 (Fla.1952); affirmed, Kelly v. Blackburn, 95 So.2d 260 (Fla.1957); City of Mt. Ve......
  • Petstel, Inc. v. King County
    • United States
    • Washington Supreme Court
    • October 23, 1969
    ...pass 'the judicial test of reasonableness.' E.g., Remington Arms Co. v. Skaggs, 55 Wash.2d 1, 345 P.2d 1085 (1959); State v. Spino, 61 Wash.2d 246, 377 P.2d 868 (1963). However, we have already noted that there are limitations upon this review. Otherwise courts would merely be engaging in a......
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