(dissenting):
Arson was not a specific intent offense at common law (see Crow v State, 136 Tenn 333, 189 SW 687 (1916)), and I can find no congressional intent to make it such an offense by statute.
When a special intent is a part of the definition of a military crime, Congress has generally used the words “with intent to” (see, for example, Articles 85, 94, 118, 119, 121, 122, 123, 123a, 124, and 130, Uniform Code of Military Justice).
The Hearings before the House Armed Services Committee on H.R. 2498, 81st Congress, First Session, at page 1233, give the following comment on Article 126:
“This article divides arson into two categories. Subdivision (a) is essentially common-law arson, but is enlarged to cover structures other than dwellings, in view of the fact that the essence of the offense is danger to human life. In subdivision (b) the offense is essentially one against the property of someone other than the offender.” [Emphasis supplied.]
“Willful” has a variable and uncertain meaning in existing law. For example, this Court has described willful disobedience (Article 90, Uniform Code of Military Justice) and the willful destruction of Government property (Article 108) as specific intent crimes (see United States v Simmons, 1 USCMA 691, 5 CMR 119 (1952); *300United States v Groves, 2 USCMA 541, 10 CMR 39 (1953); but compare United States v Stewart, 19 USCMA 417, 42 CMR 19 (1970)). Nonetheless, as it is commonly defined, “willful” is intended, I believe, only to distinguish acts that are intentionally done from those which are accidental, negligent, or involuntary. See People v Cummings, 29 Misc 2d 545, 216 NYS2d 207 (1961). The word is defined in Black’s Law Dictionary, Revised Fourth Edition (1968), as follows:
“Proceeding from a conscious motion of the will; voluntary.
“Intending the result which actually comes to pass; designed; intentional; not accidental or involuntary.”
“Malicious,” the other word describing the required state of mind to commit simple arson, is defined by Black’s Law Dictionary as follows:
“Characterized by, or involving, malice; having, or done with, wicked or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse.”
Use of this term is not intended to require a specific intent but instead only a general criminal intent. See Tinker v Colwell, 193 US 473, 48 L Ed 754, 24 S Ct 505 (1904). Pertinent to the case at bar is the manner in which the word as used in the California arson statute has been construed:
“. . . When related to the crime of arson, the word ‘malice’ denotes nothing more than a deliberate and intentional firing of a building, or other defined structure, as contrasted with an accidental or unintentional ignition thereof; in short, a fire of incendiary origin.” [People v Andrews, 234 Cal App 2d 69, 44 West’s Cal Rptr 94, 98 (1965).]
At common law and under statutes that use “malice” and “willfulness” in defining the crime of arson, “a particular intent or malice against a person or thing is not essential; it is sufficient to show that the accused was actuated by a malicious motive and that he set the fire wilfully rather than negligently or accidentally.” 5 Am Jur 2d, Arson and Related Offenses, § 11; see also 6 CJS, Arson, § 3.
In my view, the offense here requires only a general criminal intent, and voluntary intoxication not amounting to legal insanity is not a defense to this crime. Since no instruction to the court concerning the effect of intoxication on the elements of willfulness and maliciousness was required, I would affirm the findings and the sentence as approved by the United States Navy Court of Military Review.