(dissenting):
The construction which the majority places on the aggravated arson statute makes it patently unconstitutional in my view; it also renders the legislative scheme for dealing with crimes of arson illogical and subject to abuse. Accordingly, I dissent.
In brief, the majority opinion reverses the burden of proof on a key element of the aggravated arson statute, in violation of the federal and Utah Constitutions and in violation of the provisions of the criminal code. In addition, it changes the legislative scheme with respect to the crime of arson for the purpose of defrauding an insurer and builds the rationale for its construction of the aggravated arson statute without reference to the reckless burning statute, U.C.A., 1953, § 76-6-102, which addresses directly the majority’s concern for the threat that fire poses to the safety of others. Furthermore, under the arson statutes as construed by the majority, a person who burns his habitation to defraud his insurer is guilty of the same crime as one who destroys his habitation by fire for a perfectly valid reason with no threat to any person or any person’s property.
This case and the companion case of State v. Clark and Savage, Utah, - P.2d - (No. 17739, filed November 15, 1983), demonstrate that prosecutors will inevitably file charges under the aggravated arson statute (with its lesser burden in proving *646the crime and higher penalty) instead of the arson statute which is designed specifically to deal with arson for the purpose of defrauding an insurer.
The majority opinion construes the aggravated arson statute, U.C.A., 1953, § 76-6-103(l)(a), to mean that it is a second degree felony for one to intentionally burn or cause fire damage to one’s own habitation although there is no evidence whatsoever of any intention or even threat to harm another or the property of another, or to defraud an insurance company. In so doing, the majority overrides the plain language of the statute, its common-law roots, a long line of decisions construing similar arson statutes to the contrary, and contorts the statutory language. Indeed, the majority cites no case in support of its construction of the aggravated arson statute. The majority’s survey of other states’ arson statutes and this state’s prior arson statutes tends to support the view of the dissent and not that of the majority. The legislatures that have intended the result achieved by the majority opinion have used language that makes that policy clear. See Ohio Rev.Code Ann., § 2909.02 (Page Supp.1982), referred to in the majority opinion. I think it plain that the Utah Legislature did not intend, and the statute does not permit, one to be convicted of burning his own property when he has no unlawful purpose in doing so.
The aggravated arson statute, Section 76-6-103(l)(a), reads as follows:
A person is guilty of aggravated arson if by means of fire or explosives he intentionally and unlawfully damages:
(a) a habitable structure; ...
[Emphasis added.]
The term “habitable structure” is broadly defined by U.C.A., 1953, § 76-6-101(2) to mean “any building, vehicle, trailer, railway car, aircraft, or watercraft used for lodging or assembling persons or conducting business whether a person is actually present or not.” This provision is part of an integrated statutory scheme which also makes it a crime to intentionally and unlawfully burn (1) any property with the intention of defrauding an insurer, § 76-6-102(l)(a) (arson to defraud); (2) the property of another, § 76-6-102(l)(b) (arson of another’s property); (3) any structure when another person is inside, § 76-6-103(l)(b) (aggravated arson of a structure). Also, § 76-6-104 prohibits a reckless burning which endangers human life or the property of another, the concern which forms the basis of the majority holding.1 I think it clear that in *647the context of all the provisions, the aggravated arson statute may not be applied to an owner who burns his own habitation unless he intentionally threatens the life or the property of another.
The aggravated arson statute makes a burning a crime if a person “intentionally and unlawfully” damages a habitable structure. The burning in this case was intentional. The critical question in this case is the meaning of the term unlawful. That term implies a purpose of intending harm to another or to another’s property. It does not include intent to defraud because that is covered by § 76-6-102.
Where criminal statutes are susceptible to different meanings, they should be construed in light of the common law. Continental National Bank & Trust Co. v. John H. Seely & Sons Co., 94 Utah 357, 77 P.2d 355 (1938). Where the language of a statute is subject to some doubt, reference to common-law principles may provide a valuable clue as to whether a particular situation is controlled by the statute. 2A C. Sands, Sutherland Statutory Construction § 50.01 (rev. 3rd ed. 1973). As Lord Coke stated, “To know what the common law was before the making of the statute is the very lock and key to set open the windows of the statute.” State v. Pierson, 44 Ark. 265, 266 (1884). See also 3 Wharton’s Criminal Law § 352 n. 66 (14th ed. 1980) and cases cited therein.
At common law, arson was the willful and malicious burning of the dwelling house of another. 4 W. Blackstone, Commentaries *220. It was an offense not against property, but against the habitation or occupancy of property. Id.; 3 Wharton’s Criminal Law, supra, at § 345.
A number of states have aggravated arson statutes which, like Utah’s, make unlawful or malicious burning of a habitable structure an aggravated felony, but do not state explicitly whether the statute applies to owners. E.g., Cal.Penal Code § 447a (West 1970); Colo.Rev.Stats., § 18-4-105 (1973); Idaho Code § 18-801 (1979 repl. vol.); Minn.Stat. § 609.561 (1982). See also 3 Wharton’s Criminal Law, supra, § 352 n. 57 and statutes cited therein. Nevertheless, such statutes have been consistently interpreted to not apply to one’s own structure in one’s own possession, so long as other persons or structures are not placed in danger. E.g., State v. Varsalona, Mo., 309 S.W.2d 636 (1958); Schwartz v. Commonwealth, 232 Ky. 542,24 S.W.2d 273 (Ky.App.1930); Haas v. State, 103 Ohio St. 1, 132 N.E. 158 (1921); People v. De Winton, 113 Cal. 403, 45 P. 708 (1896); State v. Sarvis, 45 S.C. 668, 24 S.E. 53 (1896); Heard v. State, 81 Ala. 55,1 So. 640 (1887); People v. Gates, 15 Wend. 159 (N.Y.1836); Annot., “Ownership of Property as Affecting Criminal Liability for Burning Thereof,” 17 A.L.R. 1168 (1922).
In People v. Gates, supra, at 162-63, the court stated:
The statute does not say that the house, the burning of which in the night time constitutes arson in the first degree, shall be the house of another; but such must necessarily be the construction.... According to the literal construction of the section ..., a man might be punished with death for burning his own house in his own possession. I apprehend such was not the intention of the legislature, but that the common law may be called in aid of the definition of the offence .... [Emphasis in original.]
And in State v. Varsalona, supra, 309 S.W.2d at 640, the court stated:
[The question is] whether the legislature intended that one would be guilty of a crime punishable by confinement in the penitentiary ... from two to ten years if he burned his own building, even though he did so under circumstances which endangered the life of no person, endangered the property of no other person, and when there was no intent to injure or defraud, and no injury resulted to, any other person or thing.
[These circumstances being expressly provided for in other arson statutes,] [w]e are of the opinion ..., that the legislature would not have pointed out [in those other arson statutes] the *648instances in which burning one’s own property would constitute arson ... and yet have intended by the broad and unrestricted language of [the general arson statute] to make it a felony to burn one’s own property irrespective of whether such burning was done under circumstances to bring it within the provisions of the instances so provided ....
See also Stafford v. State, 33 Ala.App. 163, 31 So.2d 146 (1947) (life tenant in possession not guilty of arson); Daniels v. Commonwealth, 172 Va. 583, 1 S.E.2d 333 (1939) (even where a statute expressly applied to “any dwelling house,” whether or not the property of the accused, owner who burned his own building not liable for arson); Haire v. State, 118 Tex.Cr.R. 16, 39 S.W .2d 70 (1931) (under Texas Penal Code, owner may destroy his own house by fire unless it is within city limits, or is insured); State v. Murphy, 134 Or. 63, 290 P. 1096 (1930) (an owner may destroy his own building by fire without being guilty of any crime); State v. Greer, 243 Mo. 599, 607, 147 S.W. 968, 970 (1912) (“However reprehensible it might have been for [the owner] to burn his own property, ... it only became a crime because of the intent to injure the insurer of the property .... ”).
A few states with statutes like Utah’s have apparently ruled that the statute applies to an owner’s own building. E.g., Turner v. State, 155 Ark. 443, 244 S.W. 727 (1922); State v. Hurd, 51 N.H. 176 (1871). A close reading of these cases, however, makes clear that an essential element of the crime is that the burning be “malicious,” and that those courts would not apply the statute to an owner unless he intended harm to the person or property of someone else. Thus, in Turner v. State, supra, 155 Ark. at 445, 244 S.W. at 728, the court stated:
Of course, the burning must be maliciously done — that is to say, malicious in the sense of an intention, with bad motive, of violating the law.
And in State v. Hurd, supra, at 176, the court stated:
A man may maliciously beat his own horse, ... and he may maliciously burn his own dwelling. If he burns it for the purpose of destroying the home and lives of his wife and children, when they happen without his knowledge to be absent, the burning may be malicious: and there may be malice in other cases.
The word in § 76-6-103 which is the equivalent of “maliciously” is “unlawfully.” The majority defines that word to mean “without justification, license or privilege.” In the context of the aggravated arson statute that does not support the majority’s interpretation. Indeed, it cuts strongly against it. Surely an attribute of ownership of property is the right to destroy it unless it is done for the purpose of defrauding or injuring another in his person or property. One who destroys his own habitation must surely be considered to have a “license or privilege” — indeed a right — to destroy it.
The majority opinion is not only inconsistent, but also lays down a rule that is unconstitutional. Under the due process clause of the Fourteenth Amendment and U.C.A., 1953, § 76-1-501 of the Criminal Code, the prosecution has the burden of proving the element of unlawfulness. Yet contrary to this fundamental principle of the criminal law, and with no authority in support of its position, the majority holds that the defendant must prove the absence of unlawfulness by proving compliance with local fire safety ordinances, obtaining of a permit, notifying the fire department, warning neighbors, obtaining assistance in organizing safety precautions, and obtaining an adequate supply of water (majority opinion, p. 641). If the defendant does all this, he “could demonstrate the lawful nature of his activity” (id. at 642). That reverses the burden of proof placed on the prosecution by § 76-1-501 and by the federal Constitution. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See also State v. Green, 86 Utah 192, 40 P.2d 961 (1935); State v. Harris, 58 Utah 331, 199 P. 145 (1921).
Other courts have construed the term “unlawfully” or “maliciously” to require *649that the burning be done to damage the property of another or to injure another in one’s own habitation. In Reginald v. Bryans, 12 U.C.C.P. 161 (1862), quoted in Annot., 17 A.L.R. 1168, 1170-71 (1922), an Ontario, Canada court stated:
I think the setting fire to a man’s own house must be deemed unlawful within the meaning of the statute, when its apparently inevitable consequences must be injurious to another, and the [accused] knew it.
And in Heard v. State, 81 Ala. 55, 57, 1 So. 640, 642 (1887), the court stated:
Malice is a requisite constituent under the [arson] statutes, as at common law; and an act done by one’s self to his own property, no injury resulting to another, cannot be the predicate of legal malice.
See also Brown v. State, 285 Md. 469, 403 A.2d 788 (1979); State v. Long, 243 N.C. 393, 90 S.E.2d 739 (1956); Schwartz v. Commonwealth, 232 Ky. 542, 24 S.W.2d 273 (1930).
Indeed, the Supreme Court of Washington held that state’s arson statute unconstitutional because it was not directed to burning another’s property, or to defrauding another, or to setting a fire that was in any other way the result of malice because “[n]o conceivable public purpose can be served by the prosecution and punishment of those who set fires for innocent and beneficial purposes.” State v. Spino, 61 Wash.2d 246, 250, 377 P.2d 868, 870-71 (1963). Accord State v. Dennis, 80 N.M. 262, 454 P.2d 276 (1969).
Of course it is a serious offense to burn another’s habitation. The aggravated arson statute clearly covers that. But an innocent and harmless burning of one’s own habitation was not intended to be a second degree felony. Cf. Brown v. State, 285 Md. 469, 403 A.2d 788 (1979). A burning rises to that level of culpability only if the fire was intended to harm others or their property. See, e.g., Voss v. State, 204 Wis. 432, 236 N.W. 128 (1931); People v. Ferlin, 203 Cal. 587, 265 P. 230 (1928) (owner’s house was in possession of tenants). If one sets his habitation afire and fails to take reasonable measures to protect the lives and property of others — which seems to be the central concern of the majority — he is guilty of reckless arson under § 76-6-104.2
In the present case, the state does not dispute the defendant’s contention that he acted as the owner’s agent. Nor does the state contend that the defendant intended to harm other persons or their property by the burning. The evidence only indicates that the owner intended to burn his own home. On these facts, I do not see how a conviction of aggravated arson of a habitable structure can be sustained.
If the real purpose of this prosecution were to punish the defendant for intent to defraud an insurer, he should have been prosecuted for arson to defraud under § 76-6-102(l)(a), which specifically applies to that offense, and includes intent to defraud as an element of that offense. The punishment under that statute, which is a third degree felony, is more commensurate with such a crime than the punishment for aggravated arson of a habitable structure, a second degree felony.
Under the construction which the Court places upon the aggravated arson statute, the State may now charge a person who commits arson for the purpose of defrauding an insurer under both the aggravated arson provision and under the arson to defraud provision. But as a practical matter such cases will always be brought under the aggravated arson statute if the structure is a habitation, as they frequently are, because the elements of the crime are far easier to prove and the punishment greater. The statutory provision outlawing arson with intent to defraud will largely be a nullity. The Legislature never intended such anomalous results.
HALL, C.J., concurs in the dissenting opinion of STEWART, J.. The Utah arson statutes form an interlocking scheme to prohibit various kinds of arson.
Section 76-6-102 provides:
Arson. — (1) A person is guilty of arson if, under circumstances not amounting to aggravated arson, by means of fire or explosives, he unlawfully and intentionally damages:
(a) Any property with intention of defrauding an insurer; or
(b) The property of another.
(2) A violation of subsection (a) is a felony of the third degree. A violation of subsection (b) is a felony of the third degree if the damage caused exceeds $5,000 value; a class A misdemeanor if the damage exceeds $1,000 but is not more than $5,000 value; a class B misdemeanor if the damage caused exceeds $250 but is not more than $1,000; any other violation is a class C misdemeanor.
Section 76-6-103 provides:
Aggravated arson. — [ (1) ] A person is guilty of aggravated arson if by means of fire or explosives he intentionally and unlawfully damages:
(a) A habitable structure; or
(b) Any structure or vehicle when any person not a participant in the offense is in the structure or vehicle.
(2) Aggravated arson is a felony of the second degree.
Section 76-6-104 provides:
Reckless burning. — (1) A person is guilty of reckless burning if he:
(a) Recklessly starts a fire or causes an explosion which endangers human life; or
(b) Having started a fire, whether reckless or not, and knowing that it is spreading and will endanger the life or property of another, either fails to take reasonable measures to put out or control the fire or fails to give a prompt fire alarm; or
(c) Damages the property of another by reckless use of fire of causing an explosion.
(2) A violation of subsections (a) and (b) is a class A misdemeanor. A violation of subsection (c) is a class A misdemeanor if damage to property exceeds $1,000 value; a class B misdemeanor if the damage to property exceeds $500 value; and a class C misdemeanor if the damage to property exceeds *647$50 value. Any other violation under subsection (c) shall constitute an infraction.
. See footnote 1, supra.