Dissenting Opinion
DeBruler, J.I dissent on the grounds that the very language of this statute prohibits it from being a lesser included offense of first degree arson, and furthermore that when the statute is thus construed it is void because of vagueness.
I would agree with the majority that the usual test for whether one offense is a lesser included offense of another is whether it is impossible to commit the greater offense without having first committed the lesser. However, the statute here, although referred to as an attempt statute, has specific lan*365guage in it which takes it out of the general rule to be followed in such cases. This statute in part states:
“Whoever wilfully and maliciously does any act or acts, not set out in any of the foregoing sections of this act, that could or might result in the setting of a fire to or the burning of any of the buildings or property mentioned in or comprehended by any of the foregoing sections of this act, but which for any reason does not result in such a setting of fire to or the burning of any such property shall be guilty of attempted arson.” (Emphasis added.) I.C. 1971,35-16-1-6, Burns § 10-306.
A clear reading of the statute will reveal that by its wording it seeks to exclude from its definition all acts prohibited by the foregoing sections of the act. The foregoing sections of the act are concerned with definitions of first, second, third degree arson (the setting of fire to or burning of various types of structures) and a statute prohibiting the placing of combustible materials with intent to commit arson. The statute itself, therefore, prevents us from considering it as a lesser included offense of first degree arson. By its literal definition it seeks to prohibit certain acts not included in the foregoing sections which could, but for some reason do not, result in a fire. The language used here is clearly exclusionary in nature and not inclusive. The statute does not seek to incorporate the definitions of the foregoing sections into it, but rather specifically tells us that it is prohibiting some type of acts “not set out in the foregoing sections.” It is not possible therefore for this to be a lesser included offense of first degree arson since the statute excludes any such acts by its definition.
A further problem presents itself when we seek to discover what acts are prohibited by the language of Burns § 10-306, supra. They must be acts, aside from setting fire to or burning or placing combustible materials with the intent to burn, which could result in the setting of a fire but for any reason do not so result. It taxes the imagination to conceive of what act or acts would fit this definition. The statute, by requiring us to ignore the definition of arson in the foregoing statutes, *366leaves us in a position of having to guess at what acts it seeks to prohibit. The fault of the statute is not that it fails to specifically list all possible methods of committing arson but that it in essences excludes almost every conceivable means of attempting arson by its definition and requires us to guess as to what acts are left to be prohibited. It seeks to prohibit an act or acts which cannot be defined either by referring to the statute itself or to definitions located in related statutes. Such vagueness crosses the constitutional limits of due process by requiring men of ordinary intelligence to guess at its meaning and it is therefore void.
Note.—Reported in 287 N. E. 2d 342.