Justice Hoch begins today's opinion by the Court of Appeal by saying:
"In this case, we conclude the death of a structure's inhabitant renders that structure
uninhabited within the meaning of the arson statute."
Well, yeah. I think that's clearly right. If someone dies, say, in his sleep in his bed, and you burn the house down while he's dead, and he's the only one who "inhabits" -- or, more accurately, "inhabited" -- the thing, then, sure, you're guilty of burning down a building, but not an "inhabited" building. Because the guy is dead.
Okay.
But then there's the next sentence:
"This is so even where the arsonists
murder that inhabitant before setting fire to the structure."
Whoa.
Now, look, there's a part of me -- a huge part -- that totally gets where Justice Hoch (and the rest of the panel) is coming from here. A dead guy's a dead guy. If burning down the house of the dead guy in the bed isn't burning an inhabited building (because the guy's dead), then it doesn't matter how the guy died; e.g., that you killed him. He's still dead. Dead guys don't "inhabit" anything any more.
Ergo, by necessity, the same result.
Ditto for the statutory language. The statute says the house has to be "currently" inhabited. When the criminals torched the place, it wasn't "currently" inhabited. Indeed, they made sure of that. By killing the guy. At the time of the torching, there was no one alive. Hence the Court of Appeal's result.
I get it. Makes total sense. Linguistically, even.
And yet.
There's a part of me that's not willing to go that far. Part of me thinks: "Yeah, you could definitely so hold. Such an interpretation of the statute makes linguistic sense. Yet if it's possible to articulate a plausible interpretation of the statute that goes the other way, you know what, I'm down for that. As I really, really don't like the idea that you get a 'bonus' on the arson count for killing someone first."
Plus, I feel darn sure what the Legislature would think about this fact pattern. Beyond a shadow of a doubt. They definitely want stuff like this covered under the "inhabited" arson statute. (And even the Court of Appeal, I think, knows that, saying: "[I]f the Legislature is troubled by the
outcome of this case, it can amend the statute.")
So is a contrary interpretation of the statute plausible? I'm leaning to thinking so.
True, "currently" usually means "now", and "now" would typically mean at the time the structure was burned. But maybe we can legitimately stretch it a bit. Maybe we can reasonably say that in the rare circumstance where the arsonist is the immediate cause of the decedent's death, "currently" may mean at the time of entry into the home. And, if so, in this case, the guy's guilty. Since he entered the house, killed the guy, then burned the thing down.
Seems okay to me. I recognize that this might be a bit of a stretch of the term "currently". But, you know what? We stretch terms a least a tiny bit all the time. If it's a plausible interpretation -- and I am of the slight view that it is -- and it's a better one (which I definitely think is true), then I may be on board for it.
Not only do I think this is what the Legislature would have intended had they thought of this exact fact pattern, but this alternative interpretation also avoids some crazy line-drawing absurdities. What if the arsonist shoots the guy in the house, burns the thing down, but we're not sure whether the guy died seconds before or after the fire got started? (For example, we know he died of the gunshot, since there's no smoke in his lungs, but maybe he bled out before -- or after -- the fire was first started, and had -- or hadn't -- reached his particular room.) I can't fathom it matters in the slightest whether the dude had bled out before or after the exact second of the fire. Yet under the Court of Appeal's holding today, it totally does; it's a dispositive difference. That's definitely not a a statute that I would pass, or one that I want to adopt if I have any other reasonable alternative.
My mind keeps going back, for some reason, to the inheritance cases. Where you don't get to benefit (i.e., inherit the guy's estate) if you were the one who killed the guy. Same deal here. (And, yes, I know there's a specific statute for that. But even before that, it was part of the common law. Why not so here?)
The case also reminds me of the old yarn about the defendant who kills his parents and who pleads for sympathy because he's an orphan. Same here: "You can't find me guilty because I killed the guy first. Ha!"
Again, I recognize that there are definitely legitimate arguments to the contrary. As well as what I think are, in fact, pretty decent analogous precedent the other way. The Court of Appeal says, for example, that if you kill someone before you rape them, and then have sex with them, you're not guilty of "rape" of a live person, but only of the lesser offense of sex with a dead person. And I must admit that such a result seems right to me, and that it's also pretty darn close to what we have here.
Yet there's still part of me that rebels at the resulting conclusion. And still thinks that it might well be reasonable to say that arson's different, and that the defendant is in fact guilty of the greater crime in the present case. And that the statute would be better read in the manner I describe.
I readily concede that, on a practical level, it probably doesn't matter much. The Legislature will, I think rapidly amend the statute here. Why wouldn't it? There's not much of a constituency for the select group of people who kill someone and then burn down their house. By contrast, here's a very easy way to look "tough on crime" and reverse those "crazy liberal judges" on the Court of Appeal.
Plus, even in an individual case, the dude's sentence won't matter much. You've already got him, at least most of the time, for an actual murder charge. Plus, even under the Court of Appeal's holding, an additional arson charge as well (just not of an "inhabited" structure). Permitting a conviction on the greater arson count really won't matter much at all in your run-of-the mill cases.
Nonetheless, there's still a part of me -- a big part -- that wants to allow a conviction here. It seems a plausible interpretation of the statute. It's surely the Legislature's desire. It's probably a much better practical result. So maybe go ahead and do it. Yeah, the Legislature could do it instead. But why wait? We can do it now ourselves.
That's my current take, anyway.
Even though I totally understand where the Court of Appeal is coming from, I might well have gone the other way.
