DISSENTING
WHITE, J. —Whether or not an unsuccessful attempt such as Lynch made to burn a dwelling house constitutes first degree arson will soon be a matter of no more than historical interest in Indiana. As to incidents occurring on and after October 1, 1977, “a person who, by means of fire . . . knowingly or intentionally damages: (1) a dwelling house of another person without his consent; . . . commits arson, a Class B felony . . . .” Ind. Ann. Stat. § 35-43-1-1 (Burns 1977 Supp.). But for Lynch and those few persons who, like him, before October 1,1977, may have splashed a burning liquid onto a dwelling house’s fire-resistant siding with the result that the liquid burned without burning any part of the house, the answer to the question may mean the difference between an indeterminate sentence of five to twenty years (for first degree arson § 35-16-1-1) or a sentence of six to twelve months (for attempted arson § 35-16-1-6).
The first degree arson statute under which Lynch was charged and convicted is Ind. Ann. Stat. § 35-16-1-1 (Burns Code Ed., 1975), *117which provides in pertinent part:
“Any person who wilfully and maliciously sets fire to or burns or causes the setting of fire to or the burning, or who aids, counsels or procures the setting of fire to or the burning of any dwelling house, . . .
Many jurisdictions hold that the statutory language “sets fire to or burns” is merely repetitive of the common law and thus requires an actual burning1, i.e.
“that the fire was actually communicated to the building itself to such an extent as to have taken effect on, and in some degree destroyed some portion of the fibrous part of the wood and lumber composing a part of it.
“And this is true whether the material in question was actually in a blaze or merely charred, though a mere scorching, without any actual ignition of a portion of the building, would not be sufficient.” State v. Schwartz (Del., 1932), 5 Harr. 418, 424, 166 A. 666, 668-669.
Other jurisdictions hold that the statutory language “sets fire to or burns” defines two different offenses, one being an actual burning and the other being a lesser act, such as to “put fire to” or to “place fire upon” or “against” or to “put fire in connection with.”2 State v. Dennin (1859), 32 Vt. 158, 164. An example of this approach is found in State v. Hall and Savage (1885), 93 N.C. 571, wherein the court held defective an indictment that charged that the defendants “set fire to” but the statute used the term “burn”, stating:
“[I]t is certainly possible to set fire to some articles, which, by reason of the sudden extinction of the fire, may fail to change by charring even the material to which it has been applied, so that the defendant may have done the act imputed, and yet not burned it within the meaning of the act, and if so, no judgment can be rendered against him.” (93 N.C. at 574.)
*118In still other jurisdictions the question is avoided by use of the phrase “set fire to with intent to burn”. Such statutes clearly indicate that something less than a burning is required.3
In view of the conflicting results reached in other jurisdictions it is obvious that the phrase “sets fire to” is ambiguous. The rule for construing a criminal statute containing such an ambiguity is that stated in Utley v. State (1972), 258 Ind. 443, 281 N.E.2d 888, which concerned the scope of a statute making it a crime to escape “from the custody of the officer lawfully in charge”, etc.:
“Since the word ‘custody’ by itself is ambiguous we must construct [sic] § 10-1809, supra, to determine what the Legislature intended by using that word. In making this determination this Court must be guided by the well-settled rule of judicial construction that criminal statutes must be strictly construed against the State and in favor of the accused. Coleman v. State (1970), 253 Ind. 627, 256 N.E.2d 389. In practical effect this rule means that this Court, when faced with statutory language having two fairly well-settled meanings, will deem the Legislature to have intended the meaning which gives the narrowest range of applicability to the statute.” (258 Ind. at 446.)
Thus “sets fire to”, as used in the first degree arson statute (§ 35-16-1-1) in effect when Lynch threw the flaming liquid, should be construed as being synonymous with “burns”, this being “the meaning which gives the statute the narrowest range of applicability.”
Also, that interpretation of § 35-16-1-1 is the same interpretation expressly given it in the majority opinion in Crump v. State (1972), 259 Ind. 358, 287 N.E.2d 342, and inferentially in the Crump dissent. There the question was whether attempted arson (§ 35-16-1-6) is a lesser included offense of first degree arson as defined by the said § 35-16-1-1. In that case there appears to have been no question but that Crump succeeded in setting his ex-wife’s apartment on fire. Nevertheless the trial judge found him guilty of attempted arson as defined in Ind. Code § 35-16-1-6. In refuting Crump’s argument that the attempt statute “is too *119general and does not adequately define the conduct intended to be prohibited” (259 Ind. at 362), the court said: “It is clear that the conduct intended to be prohibited in an arson statute is a wilful and malicious burning. . . .” (Ibid.) The court then said:
“Appellant’s final argument is that the crime of Attempted Arson is not a lesser included offense of the crime of First Degree Arson. This contention is based on the fact that arson embraces an effective act from which fire results, while the crime of attempted arson necessarily embraces an ineffective act from which no fire results. If proof of an ineffective act is necessary to establish the ‘attempt’, it would follow that Attempted Arson is not an included offense of First Degree Arson because the former crime embraces an element not found in the latter.” (Original emphasis.) (259 Ind. at 363.)
The majority (four justices) of the Crump court obviously entertained no doubt that a successful attempt to burn was essential to a conviction for first degree arson under the statute here involved, § 35-16-1-1. This was made certain on the next page (259 Ind. at 364), when the court said:
“The evidence introduced at trial was sufficient to establish every element of the crime of First Degree Arson. The Attempted Arson statute embraces the same elements as are found in the First Degree Arson statute except for the element of actual burning.” (My emphasis.)
Inasmuch as the evidence at bar is insufficient only upon the element of burning, without which the evidence is nevertheless sufficient for the included offense of attempted arson, I would remand this cause and instruct the trial court to vacate the judgment and sentence as to first degree arson and enter judgment and sentence upon the necessarily included verdict of guilty of attempted arson.
NOTE-Reported at 370 N.E.2d 401.
. Graham v. State (1867), 40 Ala. 659, 664-670; People v. Myers (1862), 20 Cal. 76, 78-79; State v. Taylor (1858), 45 Me. 322, 329; State v. Jones (1891), 106 Mo. 302, 311, 17 S.W. 366, 369; Crow v. State (1916), 136 Tenn. 333, 340, 189 S.W. 687, 689; State v. Dennin (1859), 32 Vt. 158, 162-163.
. Mary v. State (1862), 24 Ark. 44, 47; Cochrane v. State (1854) 6 Md. 400, 401-402; Borza v. State (1975), 25 Md. App. 391, 396-398, 335 A. 2d 142; State v. Hall and Savage (1885), 93 N.C. 571, 572-574; Howel v. The Commonwealth (1848), 46 Va. (5 Gratt.) 664, 670-671.
. State v. Heard (1969), 105 N.J. Super. 172, 174, 251 A.2d 464, 465; State v. Dennin (1859), 32 Vt. 158, 165; Accord, Graham v. State (1867), 40 Ala. 659, 665.